Appeals court refuses to stay MSHA coal mine safety initiative

Ahead of a Jan. 29 oral argument date, a federal appeals court on Dec. 3 refused to stay the U.S. Mine Safety and Health Administration’s enforcement of a stepped-up “pattern of violations” safety program.

The National Mining Association, representing the nation’s coal producers, had filed this appeal in March of this year at the U.S. Sixth Circuit Court of Appeals. Other parties, including indepedendent coal operator Murray Energy, had filed similar appeals, with the cases then consolidated.

In these consolidated appeals, various entities challenge the promulgation of regulations under the Federal Mine Safety and Health Act of 1977 that establish the criteria and procedures for determining when a mine operator has a pattern of violations subjecting it to enhanced enforcement measures. The petitioners, which are the National Mining Association and various other mining associations, moved to stay implementation of the Pattern of Violations (POV) Final Rule on behalf of an affiliated company of one of its members and other members facing potential penalties.

Although the petitioners first moved the agency for a stay, they filed this motion one day later without waiting for any action by the agency the court noted in the Dec. 3 decision. “We may deny the motion on this basis alone,” the appeals court wrote. “But even considering the motion on its merits, we conclude that a stay is not warranted.”

The courts consider four factors to determine whether a stay is appropriate: whether the petitioner “has made a strong showing that [it] is likely to succeed on the merits”; whether the petitioner “will be irreparably injured absent a stay”; whether issuance of a stay will “substantially injure” other interested parties; and “where the public interest lies.”

It is unclear at this juncture whether the petitioners are likely to succeed on appeal, the court noted. Nonetheless, the petitioners have not demonstrated irreparable harm. The petitioners assert that, to comply with the POV Final Rule, Brody Mining (a subsidiary of Patriot Coal with operations in West Virginia) and other companies will have to “make substantial and costly operational changes that will result in enormous economic losses,” and that the POV notice has already started to exact costs. But the petitioners have not quantified any of these costs, the court said. Moreover, the petitioners have an approved and implemented corrective action plan in place under the new rule as of Sept. 17, on which they suggest “[c]onsiderable, measurable progress” has been made toward compliance.

The petitioners also acknowledge that, even absent the POV Final Rule, that “MSHA will continue to wield its vast enforcement powers under other provisions of the Mine Act,” which include abating violations within a reasonable time and subjecting mines to closure order authority. “Thus, it appears that, even absent the POV notice, the petitioners would be subject to increased operational costs and changes to avoid penalties,” the court held. “In failing to quantify their costs, the petitioners have not demonstrated that those costs are solely related to the POV’s Final Rule implementation.”

The final two “factors merge when the Government is the opposing party.” There is always a public interest in increasing mine safety, the court pointed out. MSHA designates a mine as having a pattern of violations only when it has an “established a history of significant and substantial violations of mandatory safety or health standards.” Thus, there is a heightened interest in protecting the public in this case, the court said.

Said the industry parties in a Nov. 25 brief: “MSHA characterizes the irreparable harm at issue as ‘simply the costs of complying with mandatory safety and health standards under the Mine Act,’ but Petitioners are happy to comply with those provisions. It is MSHA’s POV Rule that is the target of this litigation, not the Mine Act, and the attendant withdrawal/closure orders, with all their constitutional defects, that impose the extraordinary costs giving rise to irreparable injury in this case.”

The industry parties noted that MSHA built on an original, little-used POV rule, called POV I, in crafting this new POV Rule after the April 2010 Upper Big Branch underground mine blast in southern West Virginia, which killed 29 workers.

“The Upper Big Branch coal mine disaster did not occur because the POV I requirements were insufficient,” the parties said. “Such tragedies must be prevented. But the POV Rule does not help when it forces new, safe mine operators to close operations and risk financial ruin based on mere allegations and without proper notice. This untailored regulatory approach is causing irreparable harms of its own, as discussed thoroughly in the Motion and the Petition.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.