FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

February 6, 2014

BRODY MINING, LLC         v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

Docket Nos. WEVA 2014-82-R et al.

ORDER

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et seq. (2012). On January 30, 2014, Chief Administrative Law Judge Robert J. Lesnick issued a Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R. ' 2700.76(a)(1)(i). In his order, the Judge certified for interlocutory review by the Commission his ruling that the Secretary of Labor=s pattern of violations regulation is valid and was not applied to Brody Mining, LLC in an impermissibly retroactive manner. Unpublished Order at 3-4 (Jan. 30, 2014).

Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge=s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R.

' 2700.76(a).

Upon consideration of the Judge=s certification, we hereby grant review of the Judge=s order of January 30, 2014, with regard to: (1) whether the Secretary=s pattern of violations rule, 30 C.F.R. ' 104, promulgated at 78 Fed. Reg. 5056, and effective March 25, 2013, is valid on its face and as applied in these proceedings; (2) whether the Mine Safety and Health Administration=s pattern of violations screening criteria are invalid because notice and comment rulemaking was required; and (3) whether MSHA impermissibly applied the pattern of violations rule retroactively.

Brody=s opening brief is due to be filed within 30 days of the date of this order, and remaining briefs shall be filed in accordance with the Commission=s Procedural Rules, 29 C.F.R

' 2700.75. In their briefs, the parties should address, among other issues, the question of whether the Commission has jurisdiction to rule upon the validity of the regulations referenced above.

The petition for interlocutory review filed by the operator is denied as moot.         

/s/ Mary Lu Jordan                   

Mary Lu Jordan, Chairman

/s/Michael G. Young                   

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.                 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura                  

Patrick K. Nakamura, Commissioner

/s/ William I. Althen                    

William I. Althen, Commissioner

Distribution

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Michael T. Cimino, Esq.

Jackson Kelly, PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

Benjamin M. McFarlane, Esq.

Jackson Kelly, PLLC

1144 Market Street

Wheeling, WV 26003

Robert S. Wilson, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22 Floor West

Arlington, VA 22209‑3939

Jason Grover, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2226

Arlington, VA 22209‑2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710