FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

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November 30, 2011

ORDER DENYING REQUEST FOR DECISION WITHOUT BRIEFING

            The above-captioned matter is before me on a Notice of Contest filed by the Contestant pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 815(d). On November 9, 2011, MSHA conducted an inspection and issued Citation No. 8659952 for an alleged violation of ground support use standard 30 C.F.R. §57.6360. That same day, MSHA also issued Order No. 8659953 under section 103(k) of the Act based on an alleged roof fall “accident” that occurred at Pattison Sand Company Mine on November 7, 2011. The 103(k) Order alleges:

 A roof fall accident occurred at this mine on November 7, 2011. A roof estimated at 20 to 30 tons occurred in 12 AR, an unbolted area of the mine and a portion of the fall landed on top of the scaling equipment being operated by a miner causing extensive damage to the equipment. This could have resulted in a fatality. This order is issued to assure the safety of persons at this operation. It prohibits all activity in all areas of the mine South of crosscut L that are not bolted and meshed until an MSHA examination and/or investigation has determined that it is safe to resume mining operations in the area. The mine operator shall obtain prior approval from an authorized representative for all actions to restore operations to the affected area.

            On November 11, 2011, Contestant filed a Motion for Emergency Expedited Hearing based on the 103(k) withdrawal order, which closed those portions of the underground operation south of crosscut L that were not bolted or meshed. On November 15, 2011, Contestant filed a Supplemental Motion for Emergency Expedited Hearing based on a November 15, 2011 modification of the order. I convened a conference call with the parties on November 16, 2011 and set this matter for expedited hearing on November 18, 2011.

            An expedited hearing took place on November 18, 2011. At the close of the hearing, the parties agreed to an expedited briefing schedule and Contestant requested that if any aspect of my decision is adverse to Pattison, that I certify the matter for “emergency appeal.” Accordingly, a short briefing schedule was set with briefs due on December 2, 2011, one week after receipt of the expedited transcript on the penultimate eve of the Thanksgiving holiday. Tr. 339-43.

            Thereafter, on November 21, 2011, Contestant filed a Motion for Decision without Briefing on the Scope of the 103(k) Order, Based Upon Record Evidence. Contestant moves to invalidate the 103(k) order or limit its scope to the particular area (“12-AR”) affected by the roof fall, or alternatively for temporary relief from that Order by restricting it to the location of the ground fall. Contestant also argues that the ongoing closure beyond the limited area impacted by the ground fall is a deprivation of property in violation of due process, and the modifications to the Order are unduly restrictive. In addition, Contestant “requests certification of any remaining issues for immediate appeal, should the court rule against Pattison, to help accelerate review of the mine closure if necessary.” Pattison argues that my failure to “rule immediately, and reopen the mine areas not affected by the fall, would sanction this mine closure, and the seizure of private property based upon the pure speculation of agency personnel, through administrative fiat, rather than through actual and specific factual findings, consistent with authority of Congress, while denying Pattison its constitutional and statutory rights, including its right to due process of law.” Motion at 3. Moreover, Contestant argues that it is pure speculation by MSHA “that a ground fall in a unique area of a mine authorizes and justifies a mine-wide closure . . . .” Given the emergency nature and the alleged extraordinary seizure of the mine based on an allegation that an MSHA-approved ground control plan is inadequate and constitutes a violation of a regulation, Contestant requests that the Court rule on the scope of the 103(k) order and limit briefs to other issues. Motion at 4.

            The Secretary opposes the motion claiming that Contestant’s mine closure and concomitant due process "taking" arguments are factually and legally insufficient. First, the Secretary emphasizes that no evidence at the hearing established that the 103(k) Order closed the mine or effectively closed the underground portion of the mine. Second, the Secretary asserts that Contestant's due process "taking" argument is unsupported by evidence at the hearing and inapposite to the relief sought. The Secretary argues that the Fifth Amendment proscription that "private property shall be taken for public use, without just compensation" is not designed to limit governmental interference with property rights per se, but to secure compensation in the event of proper interference amounting to a taking. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). The Secretary further argues that there is no evidence of a physical invasion or appropriation of Contestant's property, or permanent denial of all economically beneficial use of Contestant’s property. Consequently, any Fifth Amendment "taking" analysis must rely upon (1) the economic impact of the 103(k) order upon Contestant, (2) the extent to which the order has interfered with distinct investment-backed expectations, and (3) the character of the government actions. Id. at 539-540. The Secretary notes that Contestant presented no evidence with regard to the first two factors. On the third factor, the Secretary argues that the 103(k) order was issued to arrest the exposure of miners to conditions injurious to their safety, and that valid legislation that prohibits actions injurious to the health, morals or safety of the community is not a taking. See Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 488-489 (1987), citing Mugler v. Kansas, 123 U.S. 623, 668-669 (1887). The Secretary concludes that Contestant's motion lacks sufficient factual and legal support and should be denied.

            On November 28, 2011, Contestant filed a reply. Contestant’s reply sideswipes the Secretary’s assertion that there is no evidence that the section 103(k) Order either closed the mine or effectively closed the underground portion of the mine. Contestant argues instead that the Secretary fails to understand the primary reasons for the expedited hearing, to wit, the impact of the 103(k) Order, which closes “all areas of the mine south of cross cut L that are not bolted and meshed (Sec. Ex. 4),” and the fact that record evidence (the MSHA-approved ground control plan and mine map (Sec. Exs. 5 and 6) shows that vast areas of the mine are not bolted and meshed. Contestant contends that these areas were stable and safe before the 103(k) closure Order issued, and now have been closed improperly for 19 days, even though the ground control plan continues to be valid and effective. Further, Contestant challenges the Secretary’s argument that there was “no taking” of Pattison’s property, and argues that the Order was not authorized by Section 103(k) since no accident occurred. Alternatively, Contestant argues that even if statutorily authorized, the Order improperly extends to areas of the mine that are safe and not impacted by the alleged remote and unique location where the ground fall occurred. In addition, Contestant argues that the Order contradicts a valid and effective, MSHA-approved ground control plan that declares vast areas of the mine safe, without bolting and meshing, and permits scaled, stable cap rock with and/or without shotcrete to provide safe ground support. See Sec. Ex. 6. Finally, Contestant argues that the Secretary has abused her statutory authority, which constitutes a compensable taking, and notes that this “argument is preserved for another day and another venue with jurisdiction over such issues.” See, e.g., A. A. Profiles, Inc. v. City of Ft. Lauderdale, 253 F.3d 576 (11th Cir. 2001); see also Recent Cases, Constitutional Law – Regulatory Takings – Eleventh Circuit Finds Public Purpose Determination Irrelevant to Damages Calculation, 115 Harv. L. Rev. Vol. 899- 906 (2002). Accordingly, Contestant renews its request for a ruling vacating the 103(k) Order or limiting its scope to the area actually impacted by the ground fall, pending further relief.

            Having duly considered the matter, Contestant’s Motion for Decision without Briefing is DENIED. The court declines on motion to invalidate the 103(k) order or limit its scope to the particular area (“12-AR”) affected by the roof fall, or alternatively, to grant temporary relief from the 103(k) Order by restricting it to the location of the ground fall. In this regard, I find that Contestant has not shown that there is a substantial likelihood that the findings of the Commission on the validity and scope of the 103(k) Order will be favorable to the applicant under section 105(b)(2)(B), and has failed to establish that the requested relief will not adversely affect the health and safety of miners under section 105(b)(2)(C). Furthermore, Contestant’s Fifth Amendment taking argument relies on the Secretary’s alleged abuse of authority, which I reject below. Further, that argument is inchoate and ripe for full briefing.

            The record evidence establishes that an “accident” occurred within the meaning of section 103(k). Section 103(d) of the Mine Act specifies that an unplanned roof fall, except in abandoned panels or in areas inaccessible or unsafe for inspections, is an accident for purposes of section 103. Emerald Coal Resources, LP, 30 FMSHRC 122, 124 (Jan. 2008)(ALJ Zielinski). The November 7, 2011 roof fall did not occur in an abandoned panel or inaccessible area. In fact, the fall landed on the top of the scaling equipment being operated by a miner and caused extensive damage to the equipment. Tr. 144-45; Sec. Ex. 4. Accordingly, I find that an accident occurred which satisfies the precondition for issuance of an order pursuant to section 103(k).

            With regard to the scope of the Order, the Court finds that expedited briefing will be helpful. Section 103(k) gives an inspector the authority to issue a 103(k) order “as he deems appropriate to insure the safety of any person in the coal or other mine.” 30 U.S.C.§ 813(k). The Ninth Circuit has described MSHA’s authority to manage accidents pursuant to Section 103(k) as one of “plenary power” and “complete control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9^th Cir. 1983) (“[s]ection 103(k) gives MSHA plenary power to make post-accident orders for the protection and safety of all persons.”)

            Contrary to Pattison’s initial Motion, neither the entire mine nor the underground portion of the mine was shut down. The sandstone mine operates above and below ground. Tr. 134. The scope of the 103(k) Order affected only areas underground that were south of crosscut L and not bolted or meshed. Tr. 161, 236; Sec. Ex. 4. Underground areas north of crosscut L, and areas bolted or meshed, are not affected by the 103(k) Order, including the area where the primary crusher and wet screen operate. Tr. 165.

            Based on personal observation involving a lot of roof falls at the Pattison mine that were in cap rock, certified MSHA Inspector Jim Hines credibly testified that he issued the 103(k) Order to keep miners out from under unsupported top that had been mined up to cap rock because the ground control plan, which MSHA had approved in settlement of an imminent danger order involving another roof fall at the mine in August 2011, did not work. Tr. 152-161; see also Tr. 224-25 (MSHA inspector Anthony Runyon testifying about August 3, 2011 imminent danger order). Under the roof support provisions of the ground control plan, all areas covering AQ and South and all areas to be mined in the future, would be mined up to the cap rock and carefully monitored and routinely scaled, as needed. Much of this area was already mined to cap rock. Only areas with less than 4 feet of cap rock thickness, or which have brows or potholes, would be bolted, meshed and shotcreted. Sec. Ex. 5, p. 2. MSHA District Manager Steven Richetti credibly testified that there were about 10 roof falls in August 2011, some of which were similar in appearance to the instant fall. Tr. 261. Secretary Exhibits 11 and 12 document two of these additional August 2011 roof falls in areas south of AQ where mining was up to cap rock. Tr. 212-25.

            Based on the instant roof fall under the approved ground control plan and the history of roof falls in cap rock at the mine, MSHA’s ground support expert, Dr. Chris Mark, and other witnesses concluded that MSHA had erred in approving the plan as a result of the imminent danger order settlement because cap rock was not effective support in areas covered by the 103(k) Order. Tr. 98-101, 159, 161-62, 233-37, 250, 258. In fact, MSHA District Manager, Steven Richetti, candidly admitted on cross examination that the ground control plan was a settlement of the prior imminent danger order, which he felt was the best he could do at the time, but in hindsight, he should not have agreed to the plan because miners were exposed to the hazard of roof falls from cap rock. Tr. 237, 250. When asked on cross examination whether the 103(k) Order was an attempt to undo the 107(a) imminent danger order settlement that was approved only a month earlier in October 2011, District Manager Richetti further credibly testified:

            A.        No. The 103(k) order is trying to protect the miners. The citation for [56.3360] is trying to undo the settlement or trying to correct the ground control plan. The 103(k) is to issue – it was issued to protect the miners in the rest of the mine from the same type of hazard that the scaler operator was exposed to in 12 AR.

            Q.        Okay. And its your intention not to lift the 103(k) order until the entire mine is bolted and meshed, correct?

            A.        The 103(k) order could be modified as it’s bolted and meshed or some other type of ground support that our experts would feel would be sufficient, yes.

            When further asked on cross examination to point out any particular areas of the mine that are in danger of ground fall, Richetti referenced “[a]ny unsupported part of that mine could fall at any time without warning to people that are traveling in the mine or working under it” and that “[b]olting and meshing will correct the immediate hazard” and “shotcreting would be a plus.” Tr. 251-52. Richetti’s conclusion that the cap rock was unsafe without these precautions was based on the history of falls in the mine. Tr. 258. Dr. Mark, who observed roof falls in areas mined to cap rock when visiting the mine as MSHA’s expert in August 2011, corroborated the conclusions of Hines and Richetta that cap rock, without engineering support, could not provide effective roof support. Tr. 98-100. Dr. Mark opined that an unacceptably high risk of roof falls, akin to the instant fall of November 7, 2011, existed anywhere in the underground mine where an engineered roof support system was not in place, as demonstrated by the failure of cap rock as roof support during the instant fall. Tr. 114.

            By contrast, Mr. David West, Contestant’s international expert in mining engineering and ground control in sandstone mines (Tr. 275) offered a different opinion. West testified that reports from Contestant’s ground control consultants (Maochen Ge and John Head), who contributed to Contestant’s ground control plan, led him to suspect a close correlation between the material properties and behavior of the St. Peter sandstone at the Pattison mine and the Athabasca sandstone deposit throughout Northern Canada, where West worked in just about every operating mine on ground control, support, and design issues. Tr. 273-74, 283-84, 289. West’s testimony relied heavily on an unspecified publication by Professor Morgenstern at the University of Alberta, whom West described as a well-recognized guru in soil mechanics. West endorsed Morgenstern’s description of both the Athabasca sandstone and the St. Peter sandstone as “locked sand,” which West testified was an excellent geotechnical material for excavating holes, until it gets wet or moist and becomes extremely friable, a phenomenon dubbed “air slaking.” Tr. 284-85.

            Initially, on direct examination, West had difficulty directly answering counsel’s question about whether the Pattison cap rock would form a good roof or whether additional work for ground control was necessary. Tr. 286-290. He then testified that the zone of anchorage is the cap rock and that his investigation revealed that the Contestant tried to quantify the consistency or variability of the cap rock by drilling 50 test holes (“scratch tests”) to probe the thickness and strength of the cap rock throughout the mine, and the results were pretty consistent based on West’s discussion with the bolting supervisor, who performed the tests. Tr. 291-92. West initially testified that the extant ground control plan was sufficient (Tr. 292), but retreated somewhat from this view when describing improvements that should be made to the plan, as discussed below. Tr. 307-311, 316.

            West then proffered the opinion that the cap rock in the area of the fall (12 AR) was different than the cap rock in other areas because it had been locally compromised by the presence of a gully on the surface topography. Tr. 293, 323.

What I read about all this stuff on Morgenstern, the locked sand, the air slaking and discussions with the crews, I started thinking, well, hang on. This has got something to do with it, the failure mechanism that we are seeing.

Tr. 323. West testified that there were a number of parameters involved in the failure and he tried to narrow it down and determine the main driver that caused the problem and whether there were similar conditions or a combination of parameters elsewhere in the mine. He determined that the presence of the gully on the topography, which might allow the preferential ingress of water or moisture and cause an air-slake problem, was a somewhat unique combination relative to the rest of the mine such that the extrapolation of those factors to other areas mined up to cap rock is a bit of a quantum leap. Tr. 294-96. West did acknowledge, however, “that there are areas in the mine that are susceptible to air-slake within the St. Peter sandstone.” Tr. 295.

            West further opined that the milling equipment and mining and milling methods used by Pattison were safe for miners. Tr. 297-99. That conclusion, however, appears to be undercut by the instant roof fall and the prior imminent danger order. West further opined that the ground control plan was a dynamic document that was actually an Excel spreadsheet with an attached schedule, which was constantly changing and provided for appropriate contingencies, such as potholes and brows in the roof, and which provided design drawings (C. Ex. 2) for implementation of the plan where bolting was required. Tr. 330-03.

            Contrary to MSHA representatives, West testified that if Pattison implements the ground control plan, it will be safe for miners to work in the mine. In response to counsel’s questions, West reiterated that 12 AR is not indicative of ground or cap rock conditions anywhere else in the mine, that the roof fall that happened there was anomalous based upon his observations of the gully while on the surface, and that there is no basis for the closure of any area of the mine other than 12 AR. Tr. 304-05.

            In response to relatively open-ended cross examination, West testified that there was no basis to clearly determine that the cap rock is unstable throughout the whole mine. He acknowledged, however, that there are specific areas where there has been failure into the cap rock. Tr. 306. He then hedged, stating that Pattison was an extensive mine where one tries to manage and minimize the risk to maintain safety and “it’s not a negligent process because the mine has maybe one failure.” Tr. 306-07. On further cross, West again acknowledged that there are specific areas where he has seen failures to a certain degree in the cap rock, but it is not ubiquitous throughout the mine. Tr. 307.

            When asked by the Court what was needed going forward, given those areas of cap rock failure, West opined that the essence was already in the plan, but he would divide the mine into three or four areas of similar properties or structure, which vary throughout the mine, and then tweak the plan with periodic inspection, documentation and testing. If further deterioration occurred, he suggested that the operator’s stakeholders and production crew conduct an operational meeting to discuss increasing the level of ground control. Tr. 309-310. When asked by the court whether he would make any modifications to the plan, West suggested improving the collective understanding of the air-slaking process and adding some simple, robust instrumentation to the ventilation provisions of the plan, akin to tempering the air to try and take the moisture out of it. Tr. 310-11, 314; Sec. Ex. 5, p. 4, VI.

            On redirect, West conceded that some of the failures could have resulted from moisture in the atmosphere moving into the cap rock, but he testified that bolting and meshing would not prevent slaking from the moisture in the air. Tr. 313. Rather, West opined that a very thin layer of shotcrete would be the best way to seal off the surface of the sandstone and prevent the absorption of moisture from the ventilation system. Tr. 316. Then, however, when asked whether shotcreting over the cap rock would be a more effective solution than bolting and meshing, West equivocated. “It could be. Right now I don’t know. But I think that’s part of the – the basket of things to investigate. And that should be part of the ground control plan.” Tr. 316.

             Finally, West testified that owner Kyle Pattison told him that the mine had an underground grain storage area, and if the moisture content of the grain reached a certain level, it would ferment and more moisture would be given off. Based on his conversation with Pattison, West testified that there were ground problems in the grain storage area associated with humidity brought in by the grain. Tr. 329. Upon further probing from the court, West could not recall where the grain storage area was located on the map of the underground workings. Tr. 330.

            In addition to West, Pattison also called assistant mine manager, Jack Porter, as a witness. Tr. 331-32. Porter testified that he felt safe walking in and around areas of the underground operation that were mined up to cap rock. Tr. 334. With respect to ground control methods used for areas not mined to cap rock, Porter testified that Pattison milled with a mechanical scaler, performed hand scaling with a scaling bar, used some shotcreting with pins and rebar, and "just lately" started doing bolting because of the new ground control plan. Tr. 335. Porter further testified that he felt safe walking under those areas, and added, “They look good to me, and nothing has fell [sic] on me." Tr. 336.

            Based on the foregoing record evidence, the court is not persuaded by Respondent’s motion and evidence that the Secretary abused her discretion in issuing the 103(k) order to encompass those areas underground that are south of crosscut L and not bolted or meshed. Tr. 161, 236; Sec. Ex. 4. This is particularly true prior to full briefing of the issues. By its plain terms, Section 103(k) gives the Secretary the power to accept or reject a plan submitted by the operator to resume mining, as the Secretary “deems appropriate” (see 30 U.S.C. § 813(k)), and the Ninth Circuit has described MSHA’s authority to manage accidents pursuant to Section 103(k) as one of “plenary power” and “complete control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9^th Cir. 1983).

            Given the testimony and/or documentary evidence regarding the instant November 7, 2011 roof fall, the August 2011 imminent danger order, and the history of other recent roof falls in areas mined to cap rock, the Secretary has demonstrated that an accident has occurred and that Contestant’s ground control plan is no longer deemed sufficient to protect the safety of miners working in underground areas south of crosscut L that are not bolted or meshed. Even Contestant’s expert West eventually conceded that the ground control plan should be revised to provide greater protection from failures resulting from moisture in the cap rock, i.e. air-slaking. In this regard, West conceded that some of the failures could have resulted from moisture in the atmosphere moving into the cap rock, and that shotcreting should be included in the ground control plan. Tr. 313, 316. Furthermore, even were I to credit West’s testimony that the cap rock failure in the area of the instant roof fall (12 AR) was unique and likely resulted from the presence of the gully on the surface topography, some 60-70 feet away from the compromised area, substantial record evidence, including West’s own testimony, demonstrates that there is a moisture problem in the underground workings that extends beyond 12 AR and would cause cap rock in unbolted and unmeshed areas to become friable and subject to “air slaking,” thereby creating an ongoing hazard of additional roof falls, the gully theory notwithstanding.

            In light of the foregoing, Contestant’s motion for decision on the record without briefing is DENIED. My complete decision on the merits will issue shortly after expiration of the abbreviated briefing schedule. Respondent’s motion for certification of this interlocutory ruling is DENIED as it will not materially advance the final disposition of this matter and may actually hinder accurate adjudication of the complex legal issues raised. As stressed repeatedly before and at the expedited hearing, it behooves the parties to begin negotiating a mutually agreeable plan to safely recover the affected area of the mine.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution: (Electronic & Regular Mail)

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

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