FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 9, 2012

DECISION ON REMAND

Before:            Judge McCarthy

Statement of the Case

            These contest proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Act”). By Order dated September 27, 2012, a three-member panel of the Commission remanded this matter to the undersigned Administrative Law Judge for further consideration of Contestant’s requests for modification of the section 103(k) Order, consistent with the decision of the United States Court of Appeals for the Eight Circuit in Pattison Sand Company, LLC v. FMSHRC, 688 F.3d 507, 509 (8th Cir. 2012)(granting in part and denying in part Contestant’s petition for review)(Circuit Judge Sheperd, concurring in part and dissenting in part).

            A conference call was held with the parties on October 10, 2011 to determine if this matter was moot. The Contestant indicated that the matter was not moot as bolting and meshing in new areas was an ongoing process. The parties indicated that a settlement conference would be held on November 8 and 9, 2011 in Washington, DC. Given the litigious nature of this controversy and the parties inability to date to resolve this once-expedited matter, I declined to stay my consideration of this matter. For the reasons set forth below, I decline to modify the section 103(k) Order as requested by Contestant.

Relevant Factual and Procedural Background

            Pattison Sand Company, LLC (“Pattison” or “Contestant”) operates a sandstone mine in Clayton County, Iowa. On November 9, 2011, after a roof fall in the 12 AR area of the mine two days earlier, an inspector with the Department of Labor's Mine Safety and Health Administration (MSHA) issued Order No. 8659953 pursuant to section 103(k) of the Act. That order prohibited activity in, and withdrew miners from, “all areas of the mine South of crosscut L that are not bolted and meshed.” Pattison Sand Co., LLC, 33 FMSHRC 3096, 3097 (Dec. 2011) (ALJ McCarthy).

            Pattison challenged the 103(k) Order before the Commission on the basis that no accident had occurred and that the scope of the order was an abuse of discretion. Id. at 3123-32. Pattison requested that the 103(k) Order be vacated in its entirety. Alternatively, Pattison requested that the scope of the order be modified by limiting the withdrawal to the area affected by the roof fall. Id. at 3133. Pattison also filed an emergency motion to modify the order to permit its experts to access the mine to examine and evaluate conditions, install monitoring equipment, and conduct tests. Id. at 3133-36. In its eleventh-hour Emergency Motion, Contestant asked the Commission to modify the scope of the existing 103(k) Order to permit Pattison's experts to enter the underground mine (south of crosscut L) for the limited purpose of: (1) installing instrument monitoring technology in areas where previous inspections by Pattison personnel have revealed no visible signs of deterioration, and (2) using that technology to develop a ground control instrumentation and data collection program that will allow production to continue in areas of the underground mine that are safely supported by adequate roof control measures.

            I held an evidentiary hearing on an expedited basis in Washington, D.C. Shortly, thereafter, in a 44-page decision, I affirmed the validity of the section 103(k) Order after concluding that the roof fall was an accident and that MSHA's issuance of the order was not an abuse of discretion. I also concluded that the Commission has no authority to modify the section 103(k) Order. Id. at 3147. I found that Pattison had failed to cite any authority granting the Commission the power to modify section 103(k) orders. I found no such authority. I reasoned that section 103(k) orders are an enforcement action, not an adjudicatory action delegated to the Commission. Given the distinct enforcement and adjudicatory authority delegated to the Secretary and the Commission, respectively, I found that neither the Commission nor its judges are authorized representatives of the Secretary under Section 103(k), and just as they do not have legal authority to charge an a operator with violations of the Mine Act by modifying a citation, I found that they likewise did not have the legal authority to modify a 103(k) enforcement order. Cf. Conshur Mining, LLC, Docket Nos. KENT 2008-562 and KENT-2008-782, slip op. at 10 (Nov. 28, 2011) (ALJ Feldman), citing Consolidation Coal, 20 FMSHRC 1293, 1298 (Dec. 1998), quoting Mettiki Coal Corp., 13 FMSHRC 760, 764 (May 1991). Accordingly, I concluded that under the statute, as written by Congress, the 103(k) Order must either be vacated, or affirmed, as written and modified by MSHA. I affirmed the scope of the 103(k) Order, as modified by MSHA, but refused to modify it, as requested by Contestant. Id. I further concluded that even if the modification request was alternatively viewed as a motion for temporary relief under section 105(b)(2) of the Act, 30 U.S.C. § 815(b)(2), the request did not satisfy the prerequisites for temporary relief. Id. at 3148-49.

            The Commission denied Pattison’s petition for discretionary review of my decision. Subsequently, Pattison filed a petition for review in the Eighth Circuit. The Court affirmed my conclusion that the section 103(k) Order was valid. 688 F.3d at 513. The Court also affirmed my review of the section 103(k) Order under an arbitrary and capricious standard, and found substantial evidence supporting my finding that the roof fall was an accident within the meaning of the Act, and that the scope of the order was neither arbitrary nor capricious. Id. at 513-14.

            The Court majority found that I erred, however, by determining that the Commission lacks authority to modify a section 103(k) order. The Court reasoned as follows:

Whether the Commission possesses authority to modify a § 103(k) order apart from the Act's temporary relief provision is a question of first impression in the federal courts of appeals. The Act is silent regarding the Commission's ability to review § 103(k) orders, but its power to conduct such review has been recognized by judicial decisions analyzing the Act's structure and legislative history. See, e.g., Am. Coal Co. v. U.S. Dep't of Labor, 639 F.2d 659, 660–61 (10th Cir.1981). In concluding that the Commission has authority to review § 103(k) orders, the Tenth Circuit looked in American Coal to sections of the Act providing for Commission review of other types of orders, including citations and abatement orders issued under § 104 and imminent danger orders issued under § 107(a). Id. at 660 & n. 2. Both provisions provide that following a hearing on the matter, the Commission shall issue an order, based on findings of fact vacating, affirming, or modifying the citation or order. See 30 U.S.C. §§ 815(d), 817(e). The American Coal court also looked to legislative history discussing in general terms the Commission's power of review and providing that ALJs shall “hear matters before the Commission and issue decisions affirming, modifying or vacating the Secretary's order.” 639 F.2d at 661 (emphasis added) (quoting S.Rep. No. 95–181, at 13 (1977)).

In determining that he lacked authority to modify § 103(k) orders, the ALJ relied on decisions holding that because the Act affords the Secretary enforcement authority, while limiting the Commission to adjudicatory functions, the Commission may not find violations not charged by the Secretary or modify an order from one type to another. See, e.g., Sec'y of Labor v. Consolidation Coal Co., 20 FMSHRC 1293, 1298 (1998); Sec'y of Labor v. Mettiki Coal Corp., 13 FMSHRC 760, 764 (1991). On appeal, the Secretary advances this same principle, contending that modification of § 103(k) orders is barred by SEC v. Chenery Corp., 332 U.S. 194 (1947). There, the Supreme Court held that in reviewing acts of administrative agencies, a court “must judge the propriety of such action solely by the grounds invoked by the agency.” Id. at 196, 67 S.Ct. 1575. The Secretary now asserts that the Commission would impermissibly substitute its own judgment for that of the agency if it were to modify a § 103(k) order. We note that because the Secretary did not advance this argument in the administrative proceedings, it is not entitled to deference on appeal. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating positions' are not entitled to deference when they are ... advanced for the first time in the reviewing court.” (citations omitted)).

We conclude after study that the Commission has the power to modify § 103(k) orders. First, the Secretary does not challenge the Commission's ability to review § 103(k) orders and affirm or vacate them. The Commission's power to conduct such review is based on legislative history and other provisions of the Act which also suggest that it generally has the power to modify the orders it reviews. See Am. Coal Co., 639 F.2d at 660–61. It follows that if the Commission can review § 103(k) orders, it also has the power to modify them. Second, the ALJ's reliance on Commission authority holding that it and its administrative law judges may not change an order from one type to another or increase the number of charged violations is misplaced. Pattison's requested modifications are not of this character. The modifications it seeks would maintain the Secretary's order as a § 103(k) order, but lessen its severity by limiting the scope of the order or by permitting its experts access to the mine. This approach is in line with Commission authority discussing modification of a § 104 order and indicating that an ALJ may “modify a citation or order so long as the essential allegations necessary to sustain the modified enforcement action are contained in the original citation or order.” Sec'y of Labor v. Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (1996). The allegations sustaining the original order here would continue to support a grant of Pattison's modification requests.

We also find the Secretary's reliance on Chenery unpersuasive. That case dealt with an Article III court reviewing administrative action. Unlike such a court, the Commission is an independent adjudicatory body that “stands in a fundamentally different position in relation to the Secretary than does a court of appeals.... The Commission is comprised of persons who ‘by reason of training, education, or experience’ are qualified to carry out its specialized functions under the Act.” Sec'y of Labor v. Old Ben Coal Co., 1 FMSHRC 1480, 1484 (1979) (quoting 30 U.S.C. § 823(a)). Moreover, the Chenery decision reflected a concern about courts entering a “domain which Congress has set aside exclusively for the administrative agency.” 332 U.S. at 196. There is less danger of that here since Congress has explicitly provided the Commission with the authority to modify orders issued under the Act. We thus can discern no limiting principle that would allow Commission review of § 103(k) orders but prohibit modification of such orders.

The Secretary contends that even if we determine that the Commission has authority to modify a § 103(k) order, remand is not necessary here because the ALJ determined that the scope of the Secretary's order was not arbitrary and capricious. The ALJ then was proceeding, however, under the assumption that he lacked authority to do anything but enforce the order as written or vacate it entirely. We cannot say that he would have reached the same conclusion had he recognized his authority to modify the order. Accordingly, we remand Pattison's requests for modification of the order to the Commission for its consideration. Upon remand the Commission may well decline to modify the order, but it is for it to make a decision in the first instance. Because we conclude that the ALJ's determination that he lacked authority to modify the § 103(k) order was in error, we do not address Pattison's arguments related to the Act's temporary relief provisions.

688 F.3d at 515-16.

            Circuit Judge Shepherd dissented on this issue. He reasoned as follows:

As the majority explains, whether the Commission has the authority to modify the Secretary's section 103(k) order is a question of first impression in our Court and in all other federal courts of appeals. While there appears to be ample authority regarding the Commission's ability to administratively review a section 103(k) order and either affirm or vacate the order, the majority's opinion expands this basic review to bestow upon the Commission the authority to modify orders. Absent any support for such authority in the Federal Mine Safety and Health Act, this expansion exceeds the authority granted to the Commission by Congress.

Pattison argues that support for the Commission's ability to modify a section 103(k) order is found in section 105(b)(2)'s “of any order” language. Section 105(b)(2) states, “the Commission [may] grant temporary relief from any modification or termination of any order or from any order issued under [Section 104] of the Act.” 30 U.S.C. § 815(b)(2). The meaning of this section is plain and clear. The Commission may grant temporary relief from a part “of any order,” including a section 103(k) order, that has been modified or terminated. Congress did not grant unto the Commission the authority to grant temporary relief from those parts of section 103(k) orders that have not been modified or terminated. Pattison contends “there is no conceivably logical explanation” for this interpretation of the Act. However, when we are given statutory text that is plain and clear, our obligation is to apply the text as written. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”).

Accordingly, because the Act does not grant to the Commission the authority to modify section 103(k) orders and the plain language of section 105(b)(2) states that the Commission may only grant temporary relief from those parts of a section 103(k) order that have been modified or terminated, I would deny the petition for review in total.

Analysis and Disposition on Remand

            The doctrine of “law of the case” provides that when an appellate court has rendered a decision and states in its opinion a rule of law necessary to that decision, that rule is to be followed in all subsequent proceedings in the same action. Accordingly, the terms of the Court’s remand bind the Commission as the law of the case unless the Supreme Court grants certiorari and vacates or amends the decision imposing the remand. Applying the Eighth Circuit’s decision as the law of the case, I find that the Commission has authority to modify section 103(k) orders. As the Court noted, however, the Commission may decline to modify the order.

            After careful review of the existing record in light of the Court’s remand directive, I decline to modify the § 103(k) Order to limit it to the immediate area surrounding the roof fall, or to allow Pattison’s experts to enter the prohibited area of the mine to examine and evaluate conditions, install monitoring equipment, and conduct tests. I find that the scope of the section 103(k) Order was justified in light of the uncertainty and instability of the roof conditions in the underground areas south of crosscut L. The scope of the § 103(k) Order was based on the fact that the roof fell in an area that was mined to cap rock. Tr. 140, 159. Pursuant to the initial ground control plan, roof mined to cap rock only needed to be scaled, and thus needed no additional support, unless there were brows, potholes, or cap rock thickness of less than four feet. Tr. 98-100, 250; Sec’y Ex. at 2. Since none of these conditions were present at the site of the November 7, 2011 roof fall, and because proper scaling occurred, the assumption underlying the ground control plan, i.e., that the cap rock could adequately support the mine’s roof, was indeed suspect. Tr. 144.

            The record also establishes that on August 3, 2011, just a few months earlier, MSHA issued a section 107(a) imminent danger order closing the mine due to concerns about roof falls in the underground portion of the mine. Tr. 153, 213, 224-25, 229. The ground control plan at issue was negotiated in an effort to settle that 107(a) enforcement action. Tr. 229, 235-36. While Contestant argues that this history of roof falls should be discounted due to the fact that they occurred in inactive areas of the mine, I find that the history of roof falls at the mine strongly supports MSHA’s position that the cap rock was unsafe without additional support.

            In addition, I take administrative notice of the reported fact that on January 11, 2012, one month after I issued my initial decision in this matter, Pattison’s underground sandstone mine experienced another significant ground fall of about two tons of material, in addition to the six reported falls of ground that occurred in 2011. The accident area had been scaled but not bolted or equipped with straps for ground control, according to enforcement paperwork. See Mine Safety and Health News, Vol. 19, No. 2, p.37 (Jan. 23, 2012).

            Given this history, and the fact that the November 7, 2011 ground fall occurred in roof that Contestant had represented was safest (cap rock), MSHA rationally concluded that the roof in the mine south of crosscut L that was not bolted and meshed - - some of which already had, or was scheduled to have, ground support, - - was dangerous. Tr. 236-37. An experienced MSHA inspector who was very familiar with the mine (Tr. 133), issued the section 103(k) Order prohibiting all activity in areas south of crosscut L that are not bolted and meshed until an MSHA examination or investigation determined that it is safe to resume mining operations in the affected area. Given the testimony, photographs, and/or documentary evidence regarding the November 7, 2011 roof fall, the August 2011 imminent danger order for roof fall, and the history of other recent roof falls in areas mined to cap rock, the Secretary rationally demonstrated that Contestant’s ground control plan was no longer sufficient to protect the safety of any person working in underground areas south of crosscut L that are not bolted or meshed.

            On the existing record, I decline to second guess MSHA’s reasonable judgment to require bolting and meshing throughout areas of the mine south of crosscut L, and to prohibit Respondent’s proposed entry into such areas. I find it contrary to the fundamental purpose of the Act to limit the scope of the withdrawal order to the area affected by the ground fall, i.e. 12AR, when it is known that a similar risk to miner safety from the same conditions existed elsewhere throughout areas of the mine south of crosscut L. As I made clear in my initial decision, Pattison’s assertions that the affected area was geologically unique from other sections of the mine is not persuasive. I declined to credit the assertion from Contestant’s expert, David West, that the “the strength of the caprock [in 12AR was] locally compromised by the presence of a gully on the surface topography.” Tr. 293. I found his testimony to be contrived because it was strikingly similar to testimony that he had provided for the same law firm in another case several years earlier, and it failed to explain how the unique moisture conditions were a proximate cause of the ground fall. By contrast, I found the testimony of the Secretary’s expert, Dr. Mark, to be more persuasive because it was based on his observation of prior roof falls at the Pattison mine. The Court affirmed my findings. 688 F.3d at 514.

            In short, the mine’s history of roof falls in areas mined to cap rock demonstrates that the instant roof fall was indicative of a larger problem encompassing far more than the immediately affected area. In these circumstances, I decline to circumscribe the scope of the section 103(k) Order to the area affected by the ground fall.

            I also decline to modify the order, as requested, to permit Pattison’s experts to examine and evaluate conditions, install monitoring equipment and conduct tests. MSHA informed Contestant that it was not possible to determine the stability of the roof at the Pattison Mine from visual observations. MSHA further determined, as experience has shown, that even roof that has been freshly scaled may suddenly collapse without warning, and MSHA reiterated its expert conclusions at the hearing that the only way that the roof can be “made safe” is to install roof support. While MSHA expressed a willingness to discuss alternative support designs for the future, MSHA determined that the most appropriate support pattern was 8 foot bolts with mesh. MSHA further asserted a reasonable belief that Pattison’s proposed activities were “research oriented, ” as two PhD students were to accompany its experts. In addition, MSHA informed Pattison that ground movement monitors were not an acceptable replacement for roof support in the Pattison Mine, and that while studies of the mine design and ventilation issues were desirable, they did not address the immediate need for roof support at the mine. In these circumstances, MSHA rationally expressed its belief that Pattison’s proposed work plan did not justify the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine. I decline to second guess its expert judgment.

            Based on the foregoing, Pattison’s requests for modification of the section 103(k) Order are DENIED.  

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108  

Henry Chajet, Esq., Patton Boggs LLP, 2550 M. St. NW, Washington, DC 20037

/tjr