Appeals court dismisses coal-industry challenge to rule targeting mines with repeated violations

bestep@herald-leader.comAugust 20, 2014 

Kentucky coal.

PHOTO BY CHARLES BERTRAM | STAFF — Herald-Leader

Federal appeals judges have dismissed a complaint challenging a rule that regulators have used in stepped-up enforcement against coal mines accused of having poor safety records.

The Kentucky Coal Association and other industry groups had asked the court to strike down the provision, called the pattern of violations rule.

Under the rule, the U.S. Mine Safety and Health Administration can place a mine on pattern of violation status if the agency decides the mine has recurring health and safety problems that endanger miners.

If federal inspectors then find another violation they deem to be significant and substantial, the rule requires shutting down all or part of the mine until the condition is fixed — a costly sanction for the company.

A significant and substantial violation is one that contributes to a condition reasonably likely to cause serious injury, illness or death.

MSHA didn't succeed in putting a mine on pattern of violation status for more than three decades after Congress passed the 1977 federal mine-safety act.

One reason was that the law said MSHA could count only finalized citations in deciding if a mine had a pattern of violations. Coal companies could stave off the determination by contesting citations.

The agency placed two mines on the status for the first time ever in April 2011, including the Bledsoe Coal Corp.'s Abner Branch Rider Mine in Leslie County, which the company later abandoned.

In January 2013, MSHA finalized a new rule under which it can use citations that are not yet final in deciding whether to put a mine on pattern of violation status.

"MSHA should not be prevented from taking action to protect the lives of miners for months, or even years, while we await the final outcome of citations and orders that a mine operator can easily contest," MSHA chief Joe Main said at the time.

Another Kentucky mine, Tram Energy LLC No. 1, was among the first three mines in the nation placed on pattern of violation status under the new rule. The other two were in West Virginia, and MSHA later added a third mine there to the list. The Tram Energy mine was removed from the list after it shut down, MSHA spokeswoman Amy Louviere said.

Industry groups appealed directly to the U.S. 6th Circuit Court of Appeals in Cincinnati to strike down the rule.

Among other things, the industry argued that MHSA adopted the rule improperly; that it is wrong to use pending citations under the provision because many are later dismissed or overturned; and that the rule stripped companies of the right to contest citations before facing sanctions.

The industry also complained that under the old rule, MSHA notified companies when they had a potential pattern of violations — giving them a chance to fix problems — but that the new rule eliminated that step.

MSHA asked the appeals panel to dismiss the industry's challenge, arguing that the court did not have jurisdiction to decide the case.

A three-judge panel agreed in a ruling issued Tuesday.

The appeals court can decide matters related to mandatory health and safety standards under the 1977 federal mine act, but the pattern of violations rule is not one of those, the court said.

Unlike standards that impose obligations on mine operators, the pattern of violations provision is directed at the federal labor secretary — the head of MSHA — and provides a tool to measure operators' compliance with mandatory standards, the appeals panel said.

The ruling did not address the substance of the industry's claims.

The industry groups fighting the rule were deeply disappointed in the ruling, one of their attorneys, Henry Chajet, said Wednesday.

But Chajet noted the court did not kill the complaint in a way that would bar bringing it back up, and said the industry's substantive case remains strong.

The groups are considering options such as asking the full court for review, he said.

The industry is also challenging the rule before the Federal Mine Safety and Health Review Commission.

For his part, Main, the MSHA chief, has said the rule is helping improve mine safety.

The agency's pattern-of-violation actions have resulted in a reduction of more than 80 percent in mines being screened as chronic violators, and as of the end of the year, lost-time injury rates at mines under the status had gone down 44 percent, according to information from Louviere.

Bill Estep: (606) 678-4655. Twitter: @billestep1.

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