FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20001-2021

Telephone: (202) 233-3880

Fax: (202) 434-9949

December 13, 2011

DECISION AND ORDER

Appearances:              Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri, and Lynne Dunbar, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the Respondent

Henry Chajet, Esq., David Farber, Esq., and Ed Wisneski, Esq., Patton Boggs LLP, 2550 M. St. NW, Washington, D.C., for Contestant

Before:                       Judge McCarthy        

I. Statement of the Case

            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 issued Citation No. 8659952 for an alleged violation of ground support use standard 30 C.F.R. § 57.6360. The Citation alleges:

The ground control system in use by the mine has not been adequately designed, installed and maintained to control the ground conditions found where persons work or travel. A roof fall estimated at 20-30 tons occurred in an area mined up to “Cap Rock.” This fall occurred in 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. In accordance with its ground control plan the mine has relied on scaling as the only ground control in areas mined to the “Cap Rock” unless a pothole or brow existed, or there was less than 4 feet of Cap Rock.” As evidenced by the fall, mining up to the “Cap Rock” and scaling is not adequate to insure miner safety.

Sec. Ex. 1. The gravity of the citation is designated as significant and substantial and reasonably likely to result in a fatality, with moderate negligence, and one person affected.

            On November 9, 2011, MSHA also issued Order No. 8659953 under section 103(k) of the Act based on the 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.

The section 103(k) Order was subsequently modified three times. A November 9, 2011 modification (8659953-01) allowed the mine operator to retrieve equipment needed for bolting and to allow the mine operator to institute the bolting process. A November 15, 2011 modification (8659953-02) allowed the operator to go underground and evaluate the ground conditions south of crosscut L. Personnel were limited to three individuals, inclusive of both mine and/or contractor personnel. Equipment was limited to that needed to transport the individuals conducting the evaluation. The time allowed underground was no more than 20 hours starting on November 15 and ending on November 19, 2011. A November 16, 2011 modification (8659953-02) allowed up to four individual and the use of the JLG under ground to evaluate ground conditions and the time allowed under ground was limited to the 20 hours requested by the mine operator and ending on November 20, 2011. Sec. Ex. 4.

            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 in Washington, DC on November 18, 2011. Witnesses traveled from the North Cental part of the United States to attend the expedited hearing on short notice. At the outset of the hearing, I heard oral argument on Contestant's Expedited Motion to Dismiss or, in the Alternative, for Temporary Relief, and on Contestant's Motion in Limine. I denied the motion in limine and held in abeyance my ruling on the motion to dismiss or for temporary relief.

            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. On November 23, 2011, the Secretary filed her opposition to the motion claiming that Contestant’s mine closure and concomitant due process "taking" arguments were factually and legally insufficient. On November 28, 2011, Contestant filed a reply. On November 30, 2011, I issued an extensive Order denying Contestant’s motion for decision without briefing and denying Contestant’s motion for certification of my interlocutory ruling.

            On Friday, December 9, 2011, at 5:46 p.m., as this Decision and Order was near completion, Contestant filed an Emergency Motion to Modify 103(k) Order to permit its experts to enter the underground portion of the mine to examine and evaluate conditions, install monitoring equipment and conduct tests. On Monday, December 12, 2011, during normal business hours, the Secretary filed her terse Opposition and Motion to Strike Contestant’s Emergency Motion to Modify 103(k) Order based on the fact that the Court already has before it the issue of the scope of the 103(k) Order, and Contestant’s motion is an improper attempt to supplement the record with regard to that issue. The Secretary’s motion to strike is denied and Contestant’s motion is discussed and dealt with herein.

            This contest proceeding, now fully briefed by the parties, presents the following issues:

(1) whether Citation No. 8659953 is valid, as written, or should be vacated; (2) whether Section 103(k) Order No. 8659952 is valid as written and modified, or should be vacated because no accident occurred; (3) even assuming an accident occurred, whether the scope of the 103(k) order is unreasonable or an abuse of discretion; and (4) whether the Commission has authority to modify or limit the scope of the 103(k) Order, and whether it should do so.

            On the entire record, including my observation of the demeanor of the witnesses, and after considering the post-hearing briefs, I make the following:

II.Factual Background

A.        Stipulated Facts

            The parties stipulated to the following facts.

            1. Contestant Pattison Sand, LLC, ("Pattison") is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977 as it is a mine operator as defined under section 3(d) of the Act and its products enter, in effect, interstate commerce.

            2. The Federal Mine Safety and Health Review Commission has jurisdiction in this matter.

            3. Citation No. 8659952 and Order No. 8659953 were properly served by a duly authorized representative of the Secretary of Labor upon an agent of Pattison on the dates and places stated therein and may be admitted into evidence for the purpose of establishing their issuance but not the truth or relevancy of any statements asserted therein or for their legal validity.

            4. Pattison mines and processes sandstone both underground and above ground in order to produce frac sand in its Clayton County, Iowa mine where it operates. It operates on 12-hour shifts, working 7 days a week, 365 days per year, employing about 190 persons.

            5. No one was injured in the ground fall that occurred that resulted in the citation and order under contest.

            6. No mine explosion, mine ignition, mine fire, mine inundation or any injury or death of any person occurred at the mine when the ground fall occurred.

            7. The ground fall was not at or above an anchored zone in an active working or in an area where bolts were in use.

            8. The ground fall was not an outburst.

            9. The ground fall did not impair ventilation nor result in an entrapment for more than 30 minutes or entrapment that had a reasonable potential to cause death.

            10. The 103(k) order resulted in underground areas of the mine being shut down south of crosscut L that were not bolted and meshed.

            11. No stipulation number eleven was read into the record.

            12. The ground fall occurred at about 3:00 a.m. on November 7th, 2011, during the milling/scaling of the roof using mechanical equipment with a canopy that protects the operator.

            13. The ground fall occurred when Pattison was following an MSHA reviewed, negotiated, and accepted comprehensive ground control plan.

            14. MSHA personnel were in and around the underground areas of the mine from November 7, 2011, through November 9, 2011, and completed their investigation safely and without incident on November 9.

            15. MSHA inspector Jim Hines, during his November 7 inspection, told the mine operator that the ground fall was not an immediately reportable event under 30 CFR Part 50.

16. MSHA did not issue any closure order, citation, or other withdrawal or closure order between November 7 and November 9 when the contested order and citation were issued.

B.        The History of Roof Falls, the Imminent Danger Order, the Ground Control Plan, and the Testimony of MSHA’s Ground Control Expert

            On August 3, 2011, 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. That Order is not in evidence.

            MSHA inspectors, including James Alan Hines from the Fort Dodge, Iowa field office, visited the mine on August 9, 2011 to document any roof falls or other ground conditions after the imminent danger order issued. Tr. 213, 261. MSHA North Central District Manager, Steven Richetti, whose office is located in Duluth, Minnesota, credibly testified that the inspectors observed about 9-11 roof falls in the mine about a week after the August 3 imminent danger order, some of which were similar in appearance to the instant roof fall on November 7, 2011. Tr. 261. Secretary Exhibits 11 and 12 are photographs that depict two of these August 2011 roof falls in areas south of crosscut L, which were taken by MSHA district office staff assistant, William Pomeroy, during an August 16, 2011 visit to the mine. Secretary Exhibit 11 depicts a roof fall in cap rock material in an area that was bermed off between highways 4 and 5 and crosscut AT, which occurred after the imminent danger order was written on August 3 and before it was documented by inspector Hines during the August 9, 2011 visit. Secretary Exhibit 12 depicts another roof fall in cap rock in an area that had been bermed off, but the specific location of the fall was not established. Tr. 212-20. Pomeroy did not know whether these falls occurred in active working areas or closed areas of the mine, but that areas south of AQ were mined up to cap rock. Tr. 221.

            The Secretary proffered and the court accepted Dr. Christopher Mark as an expert in ground control. (Tr. 64-71; Sec. Ex. 13, Mark C.V.). Dr. Mark had been asked by Joe Main, Assistant Secretary of Labor for Mine Safety and Health, to assist MSHA technical support in their evaluation of the roof conditions at the mine in August 2011. Tr. 74. Other than his August 2011 visit to the Pattison sandstone mine, Dr. Mark has never done any roof control evaluation work at other underground sandstone mines, only three of which apparently exist in the United States, but he has performed extensive ground and roof control work in coal mines, many of which have sandstone roofs, with similar bedded sedimentary composite, and he has extensive experience with rock mass classification systems that are applied throughout the field of ground control and rock engineering. Tr. 68-69. In these circumstances, I reject Contestant’s arguments on post-hearing brief at 31, that Dr. Mark, has no expertise in sandstone mines or in ground control issues beyond the coal-mine environment, and, therefore, no experience working in a sandstone mine or experience analyzing the particular rock formation and related dynamics unique to the sandstone mine environment.

            Dr. Mark visited the mine on or about August 19, 2011. He observed lots of evidence where rock had fallen from the roof. There were a number of instances of fresh debris on the floor of the mine and a lot more evidence in the roof indicating recent falls of ground. Tr. 86. Many of the falls that Dr. Mark observed were in areas mined to cap rock. Tr. 87.

            To settle the 107(a) enforcement action, Contestant and MSHA negotiated a ground control plan that MSHA District Manager Richetti approved in early October 2011. Tr. 229, 235-36. As a result, Pattison became the only mine in the North Central District to have an MSHA-approved ground control plan. Tr. 230. It was the first ground control plan Richetta had seen. Tr. 237-38.

            Dr. Mark participated in the plan negotiations with Contestant’s consultants Maochen Ge and John Head of Missouri Rolla university. Tr. 91. Dr. Mark testified that during negotiations, MSHA was concerned that there was an unacceptably high risk of unpredictable rock falls that could cause injuries throughout the mine, but MSHA could not predict where, when, or how big they might be, so engineered support (roof bolts and mesh) should be required throughout the mine to mitigate that hazard, but Pattison’s experts did not agree. Tr. 93, 95. Pattison’s position was that four feet of cap rock would provide effective support, and where there was less than four feet of cap rock, Pattison would install bolts and mesh. Tr. 96. Dr. Mark testified that MSHA did not believe that four feet of cap rock alone could provide effective support to miners working underneath the unsupported top, but reluctantly agreed with Pattison’s position in the ground control plan because roof bolting in other areas was introduced for the first time over a fairly large scale, and if Pattison’s experts were wrong, the plan would be revisited. Tr. 98-100. Dr. Mark explained that MSHA did not believe at the time that it had sufficient engineering and scientific data to justify going to court on the imminent danger order to obtain what it thought were appropriate protections for workers, but could not prove. Tr. 101.

            At the hearing, however, after the instant roof fall, Dr. Mark opined that cap rock is not effective support. Tr. 100-02. When asked by the court why MSHA did not “stick to its guns,” Dr. Mark explained that MSHA did not feel strongly enough about its position and the plan did include major improvements over the extant ground control practice at the mine, including provisions for bolting and meshing in areas that did not have four feet of cap rock and requirements that the operator test to ensure that cap rock was present. Tr. 102-03.

            Under the roof support provisions of the MSHA-approved 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 and 3. Thus, the plan addressed not only those portions of the mine that would require "bolting and meshing," but also those portions of the mine that could be mined to caprock without a need for bolts and mesh. Id. The plan also anticipated that "brows" and "potholes" would occur from time to time in cap rock, and the parties agreed to specific actions to address such situations. Id. The plan anticipated that there would be extensive work in areas both mined and not mined to cap rock and that miners would be scaling down areas where there were risks of the roof degrading over time. Id.

            As Contestant points out on brief, Dr. Mark did not visit the Pattison mine after the November 7 roof fall. Tr. 116. Dr. Mark did not remember whether he visited the area of the instant ground fall during his August visit or whether the area had been closed off by the imminent danger order, but he was in the general vicinity near the outcrop and the roof looked great at that time, like nice solid cap rock. Tr. 116-17, 119. Dr. Mark did examine inspection photos taking after the November 7 roof fall, and testified that he observed in the photographs the same kind of roof fall and debris that he had seen during his August visit. Tr. 110. Based on the mine map, he testified that the cap rock in the November 7 roof fall was in an area mined to cap rock, and although he did not know whether that cap rock was different from cap rock located elsewhere, none of Pattison’s experts ever indicated that there were different kinds of cap rock depending on where in the mine it was located, and there was no feasible way of knowing in advance whether cap rock would suddenly collapse, as in the November 7 roof fall. Tr. 112-13, 120. In Dr. Mark’s professional opinion, the risk of a roof fall similar to that which occurred on November 7 is unacceptably high anywhere in the mine where there is no roof support system in place. This opinion was based on the failure of the cap rock as roof support during the November 7 roof fall, as miners would be exposed to the hazard anywhere a miner worked or traveled that is not protected by an engineered support system such as bolts and mesh. Tr. 113-14. He testified that his professional opinion about ground conditions in this mine did not depend upon the precise location of any particular observations that he made. Tr. 117.

            When asked on cross whether he observed the gully on the side of the surface, Dr. Mark Parks replied, “The little drainage creak that comes out and around there? I can’t say that I did make specific notice of that.” Tr. 119. Dr. Mark knew that the gully on the surface was 80 feet from the location of the November 7 roof fall, but he did not know whether the gully approached any other location in the mine. Tr. 120. He further testified on cross, that the cap rock does degrade over time through effective ventilation and humidity, necessitating frequent scaling to take down loose rock, however, scaling was an inappropriate engineering technique to eliminate the hazard of unpredictable rock falls at this mine. Tr. 121. Dr. Mark further testified on cross that most of the professionals in the ground control field cannot pinpoint the cause of a ground fall, only that there are a combination of factors that either increase or decrease the probability of a roof fall occurring. Tr. 122. Consequently, Dr. Mark’s work focuses on the ability to make better estimates of what the probability of a ground failure is, which he testified is more reliable most of the time than reliance on a particular mechanism triggering failure. Tr. 122. He further testified that there is some relationship between the stability of the cap rock, the potential for ground fall, and humidity, and some relationship between pillar degradation and depth of cover, although he could not quantify it, and that any weakness in the structure of the rock mass, such as bedding plains or fractures or joints, certainly affects the likelihood of a roof failure. Tr. 123-24. Dr. Mark admitted that he did not examine or perform any evaluation of intrusions of either minerals, clays, water, layering, overburdened conditions or death of cover in the rock fall area. Tr. 124.

            On redirect, Dr. Mark testified that MSHA is charged with protecting miners from other incidents like the instant roof fall and the issue is not whether MSHA understands all the mechanisms that took place in this particular fall, but whether it can identify specific features that will allow MSHA to identify other areas that are at higher risk. At the moment, all MSHA knows is that 4- foot thick cap rock section fell in and could have caused a fatality and there is no evidence that the properties of that cap rock are different from the cap rock elsewhere in the mine, but such cap rock is being relied upon to provide sufficient protection. Tr. 126. He testified that it is pure speculation to suggest that because the roof fall happens be near some surface weakening factors in the ground, an overall stable structure can be created. Tr. 126-27.

            On re-cross, Dr. Mark acknowledged that shotcrete and scaling were employed in many areas of the mine and the miner who was scaling during the instant roof fall was protected by a cab with protective canopy, cage, and long boom. Tr. 129-130.

C.        The November 7 Roof Fall and Inspection and the November 9 Citation and Order

            On November 7, 2011 at approximately 3:00 a.m., a ground fall occurred at the Mine while Pattison was milling/scaling the roof "using mechanical equipment with a canopy that protects the operator." Stip. 12, Tr. 36. "The ground fall occurred when Pattison was following an MSHA reviewed, negotiated, and accepted comprehensive ground control plan." Stip. 13,Tr. 36. "No one was injured in the ground fall that occurred that resulted in the citation and order under contest." Stip. 5, Tr. 35. The fall occurred in 12AR. Tr. 333, 142. Immediately before the ground fall, the excavator operator had been conducting scaling work. Tr. 144-45. He saw some liquid dribbling down, which caused him to stop the excavator and back up. (Id.) At that point, the ground fall occurred. Id. The miner was not injured or trapped. Id.

            The ground fall did not involve any "mine explosion, mine ignition, mine fire, mine inundation or any injury or death of any person." Stip. 6, Tr. 35. The fall "was not at or above an anchored zone in an active working or in an area where bolts were in use," (Stip. 7, Tr. 35:19-21), and it "was not an outburst." Stip. 8, Tr. 35-36. "The ground fall did not impair ventilation nor result in an entrapment for more than 30 minutes or entrapment that had a reasonable potential to cause death." Stip. 9, Tr. 36.

            Later that day, MSHA inspector Hines responded to a hazard complaint of an unreported accident and fall of roof where someone may have been injured. Tr. 135-136. Hines arrived at the mine around 4:00 p.m. and met with a mine management representative to provide a copy of the complaint. They proceeded underground to the accident site. Tr. 136-137. Hines was joined underground by Kyle Pattison, the owner of the mine. Tr. 140.

            Hines observed and photographed the accident site, which showed a roof fall partially covering an excavator. Tr. 136-143, 181-183; Sec. Exs. 1 & 2. Hines and Pattison agreed that the material that had fallen was cap rock, and that the rocks on top of and around the excavator were twelve to eighteen inches thick. (Tr. 140). Hines and Pattison jointly made a "guesstimate" of the weight of the fallen rock to be 20 to 30 tons. Tr. 141. No one could get near the rock fall area, which had been bermed off by Contestant, but Hines took measurements at an equivalent location and measured the dimensions of the fall at 30-35 feet, with the width of the mine passageway at 35 feet, 11 inches. Tr. 140-143. Miners were bolting and meshing in the area and attempting to move closer to the excavator. Tr. 181-82.

            Hines' investigation continued through Tuesday, November 8, 2011. Tr. 149. He interviewed miner Brandon Millin, who was operating the excavator at the time the roof fell. Tr. 144-147. Millin said he was scaling, everything looked okay, but then he saw some dribbling and hit the sticks to go backwards, but he was caught in the roof fall. Tr. 144-145. The roof fall damaged the door of the excavator, but he was able to kick it open and get out, at which point he put his head down and ran from the area. Tr. 145. Millin was not injured. Tr. 145. Hines also talked to Chris Lehman, the mine manager, and Ryan Rodenberg, a day-shift supervisor. Tr. 147-148. Both confirmed that cap rock had fallen. Tr. 147-148.

            Hines was joined at the mine by MSHA inspector Runyon, who also visited and photographed the roof fall. Tr. 193-195; Sec. Exs. 7, 8, and 9. Runyon observed that the area where the fall had occurred was bermed off and could not be traversed. Tr. 201-202. I find that the ground fall did impede passage and occurred in active workings as the scaler was actively performing his assigned task. I further note that the parties’ stipulations Nos. 7, 9 and 15 and are not broad enough to preclude this finding.

            On November 9, 2011, after consulting with his colleagues, Hines issued the section 104(a) citation and section 103(k) order to Contestant. Hines testified to the basis for his S&S, gravity, and negligence determinations, and his basis for finding one person affected. Tr. 167-70. Although the citation contains no action to terminate, Hines testified that he discussed termination with Kyle Pattison and suggested that Pattison resubmit a plan that Hines would forward to MSHA tech support to determine whether the new plan would work, and that once all parties agreed to a plan that worked, he would terminate the citation. Tr. 173-74. Both Hines and Richetta testified that at the time the citation and order were issued Contestant was not violating the ground control plan. Tr. 158, 173, 177, 255. Hines and Richetta both testified, however, that the ground control plan was not working - because "cap rock is still coming down." Tr. 154, see also Tr. 159-160, 173-174, 233-237. The following colloquy from Contestant's cross-examination of Richetta, elucidates MSHA’s concern:

Q. Okay. The 103 order covers that intersection [AC 3], doesn't it?

      
A. Yes.

      
Q. Okay.      
A. Unless it's been bolted and meshed.      
Q. Right.
A. I don't know what part has been bolted and meshed.

Q. Okay. We'll stipulate that AC 3 has not been bolted or meshed yet.

 A. Okay.

Q. Okay. What evidence do you have that there is any danger in the ground at that intersection?

A. The cap rock was supposed to be the best part of your mine. The cap rock failed. It was not bolted and meshed. This area is either going to be mined up to the cap rock, which then, in my opinion, needs - is going to behave like the cap rock. Or if it was worse than the cap rock and needed to be bolted and meshed to start with, it needs to be done now before it can fall on someone.

Q. You don't have any specific information about that particular intersection. Your conclusion is based upon your general understanding of cap rock?

 A. It's been -- it's based on the history of the falls in that mine.

Q. Okay. And if cap rock in your view fell at AR, then the cap rock at AC 3 must behave the same way; is that right?

A. It was Pattison's contention that the cap rock would behave the same all over the mine.

 Q. Someone from Pattison told you that?

A. Their plan said that all they had to do to the cap rock was mill it, examine it. And if there was brows and potouts less than 4-foot thick, it would be bolted. Otherwise, the cap rock would not create a problem.

Q. So you know that the ground control plan that you approved discusses different kinds of things that can happen in cap rock. It can brow. It could form a pothole. It could be 4-foot thick. It can be less than 4-foot thick, right? The plan addresses all those contingencies, doesn't it?

A. Right. But the plan also leaves open the possibility that something can happen like happened in AR where there wasn't a brow or a potout. And it wasn't less than 4-foot thick.     

Q. Okay. And that was the plan you approved, right?

 A. As a settlement. 

(Tr. 256-259).

            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, were not affected by the 103(k) Order, including the area where the primary crusher and wet screen operate. Tr. 165.

            Based on his 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).

            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. 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.

D.        The Testimony of Contestant’s Expert and Assistant Mine Manager

            Mr. David West, Contestant’s international expert in mining engineering and ground control in sandstone mines (Tr. 275) offered a different opinion than MSHA’s expert and witnesses. 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, and was actually an Excel spreadsheet with an attached schedule, which was constantly changing, provided for appropriate contingencies, such as potholes and brows in the roof, and 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.

E.        E-mail Correspondence Underlying Contestant’s

            Emergency Motion to Modify 103(k) Order

            After the hearing, in a December 6, 2011 email, Kyle Pattison wrote Richetta, as follows:

            I wish to appraise (sic) and update you on the progress of the ongoing work at the Pattison Mine. There was a teleconference call earlier today (5/12/2011) (sic) between Dr. C. Marks, Dr. Maochen Ge and Mr. Dave West. The subject of the call was to further discuss our proposed work plan and the modification of the existing K Order at the Pattison Mine. It is my understanding that Dr. Marks presented the position that MSHA is unwilling to allow any work at the Pattison Mine that is not performed beneath a bolted and screened roof. In addition, Dr. Marks stated that this would certainly apply to what he described as “research orientated work.”

            I understand that Mr. West explained that our proposed work plan is not “research orientated,” that it is designed to produce practical results with short term goals.

            Mr. West has suggested that PSC provide MSHA with an update and additional details concerning the proposed work plan to facilitate their decision on the request for the K Order modification. As stated previously the current program of work that is envisaged is preliminary, our intent is to periodically review and revise the program where necessary and to include any additional tasks that deem merit. Further details of the program, (i.e. a detailed description of the tasks and scheduled durations) will be developed in due course and shared for review by all the interested parties, (i.e. MSHA, JHSC, Univ. Missouri, PSC, etc.).

            An outline of the current tasks is as follows:

•          Dr. Maochen Ge, Dr. Jerry Tien and Mr. Dave West are planning to visit the Pattison Mine during the 12th to the 15th December. They will perform the preliminary work for the program of activities. They will require access to the mine to establish locations and install instrumentation for monitoring. It is anticipated the inspection will require access to the mine on Monday through Thursday, (December 12th to 15th).

•          All the areas of the mine that are options for instrumentation and monitoring sites were inspected by Dave West and Chris Lehman on Friday 2nd December. At that time all of these areas showed no visible signs of deterioration.

•          It is proposed that each of the selected areas will again be first thoroughly inspected on 12th December before any of the proposed work activities are performed. This will include hand scaling in each area to “sound” if any deterioration has affected the area. If conditions warrant, this will be followed with a thorough mechanical scaling and an application of shotcrete if required. Our objective is to make each area safe before any work is started.

•          Our proposed work plan involves the local installation of Worker Safety type instrumentation, such as GMM’s, (Ground Movement Monitors). It is my understanding that a description of the installation and reading procedures has been forwarded to Dr. Mark and that he is familiar with this type of instrument. It is our intent to install these instruments in any access to the work locations before the work begins. The GMM’s will be read at regular intervals during the work program.

•          We will apply shotcrete wherever this is deemed to be necessary. It should be noted this was an acceptable approach as agreed to by MSHA in the support of the Centrifuge location.

•          Please recognize that both Dr. Maochen Ge and Dr. Jerry Tien have busy schedules. This is a limited window of opportunity, therefore we ask you to approve the requested modification to the K Order so we can provide acceptable solutions for all the parties concerned. The objective of their visit is to develop a ground control instrumentation and data collection program at the mine. Their visit will also address the future mine ventilation plans. It is our intention to ensure that the work by Maochen and Jerry will be practical and provide immediate feedback. The instrumentation and monitoring program consists of:

            -          Worker Safety Instrumentation. This involves the installation of GMM’s (Ground Movement Monitors), these are linear potentiometers installed on TBE mechanical rock bolts of various lengths. GMM’s are read with a simple resistance multimeter, any change in resistance is directly proportional to displacement. The Workers (and JHSC) can be quickly instructed in reading and interpreting the instruments. GMM’s will become part of the 5 Point Safety Inspection procedure. This instrumentation will be a priority.

            -          Design Instrumentation. This involves monitoring the ground response to collect numbers for feedback into the mine design. The areas to be addressed include: mine pillars, roof spans and issues related to air slacking. The priority of these instrumentation programs will be a secondary to the Worker Safety Instrumentation and each element will have different durations. The likely durations will be established by Maochen and Jerry during their site visit.

            -          Ventilation instrumentation and monitoring. PSC’s future plans include the use of VNetPC ventilation modeling software, this will enable potential improvements in the control of the mine atmosphere, (i.e. moisture content & air slack potential). Jerry Tien will require access to the mine under full ventilation to determine the locations for monitoring stations.

             It is anticipated that intermittent access to the mine will be required during the site visit. It is intended that in due course the instrumentation locations, types and purpose of each instrument will be presented to MSHA, JHOC, etc., for their review and input.

See Emergency Motion at Exh. A, pp. 1-3.

F.        MSHA’s Rejection of the Requested Modification

            In a December 7, 2011 response, Richetta wrote, as follows:

            Kyle, MSHA believes that it is not possible to determine the stability of the roof at the Pattison Mine from visual observations. Experience has shown that even roof that has been freshly scaled may suddenly collapse without warning. The only way that the roof can be “made safe” is to install roof support. While MSHA is willing to discuss alternative support designs for the future, at present we believe that the most appropriate support pattern is the one developed by Pattison’s rock mechanics consultant and described in Pattison’s ground control plan, namely 8 ft. bolts with mesh.

            MSHA believes that the proposed activities as described are “research oriented.” Ground Movement Monitors are not an acceptable replacement for roof support in the Pattison Mine. For such monitors to have any validity as warning devices, it is necessary to first collect data on the magnitudes and rates of roof movement that indicate impending collapse. Enough data must be collected so that the conclusions are statistically valid. No such data has been collected at Pattison, or (to our knowledge) from any other sand mine. Since the only possible purpose of the proposed Univ. Missouri work is to collect such data, it must be considered as research. Similarly, while studies of the mine design and ventilation issues are desirable, they do not address the immediate need for roof support at the mine.

            In summary, MSHA does not believe that proposed work plan justifies the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine.

See Emergency Motion at Exh. A, p. 1.

III.      The Position of the Parties

            A.        The Secretary’s Arguments

                        1.         The Section 103(k) Order

                                    A.        Overview of Arguments

            In her post-hearing brief, the Secretary frames three issues presented by the 103(k) Order; 1) whether the November 7, 2011 ground fall was an "accident" within the meaning of the Mine Act; 2) whether the scope of the section 103(k) order is appropriate; and 3) what if any, temporary relief may the Court grant Contestant under section 105(b)(2) of the Act by modifying the section 103(k) order?

            The Secretary notes that my November 30, 2011 Order Denying Request for Decision Without Briefing found that an “accident” did occur which satisfies the precondition for issuance of a section 103(k) order. Order at 4. Therefore, the Secretary argues that MSHA's issuance of the 103(k) order was not an abuse of discretion.

            In addition, the Secretary argues that the scope of the 103(k) order is reasonable because MSHA considered all relevant factors in deciding to apply the order to unbolted and unmeshed cap rock throughout the underground portions of the mine, and articulated a rational connection between those factors and the adverse safety hazards associated with unbolted and unmeshed cap rock. In deciding to apply the order to unbolted and unmeshed cap rock, the Secretary states that MSHA considered, inter alia, Contestant's representations that cap rock was sufficiently stable such that roof bolts and mesh were unnecessary, that the cap rock roof fall on November 7, 2011 occurred after Contestant's representations about the purported stability of cap rock, and the mine's history of cap rock roof falls throughout the underground portions of this mine, both before and after the November 7 “accident.” Accordingly, the Secretary argues that the scope of the 103(k) order is reasonable and should not be disturbed.

            Finally, the Secretary argues that the Commission does not have the authority to modify the issuance of a 103(k) order in any way - it must either sustain the order if it is reasonable, or vacate the order if it is arbitrary and capricious. She argues that the issuance of the order, which also identifies its scope, was reasonable and must be sustained.

                                    B.        The Secretary’s Argument That the Scope of the

                                                Section 103(k) Order Is Appropriate

            The Secretary emphasizes that the Mine Act gives MSHA "plenary power" and "complete control" to make post-accident orders for the purpose of protection and safety of all persons. See Miller Mining Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). MSHA has broad authority to issue 103(k) orders to effectuate this purpose. See Buck Mountain Coal Co., 15 FMSHRC 539 (Mar. 1993) (ALJ Barbour); West Ridge Resources, Inc., 31 FMSHRC 287 (Feb. 2009) (ALJ Manning). This broad grant of authority is recognized in the legislative history, which states that:

[t]he unpredictability of accidents in mines and uncertainty as to the circumstances surrounding them requires that the Secretary or his authorized representative be permitted to exercise broad discretion in order to protect the life or to insure the safety of any person. The grant of authority under section [103(k)] to take appropriate actions and … to issue orders is intended to provide the Secretary with flexibility in responding to accident situations, including the issuance of withdrawal orders.

S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978) (emphasis added).

            The Secretary notes that the Commission has not decided the appropriate standard for reviewing a Section 103(k) order. See Eastern Assoc. Coal Corp., 2 FMSHRC 2467, 2472 n.7 (1980) (declining to determine whether a Section 103(k) order is reviewable on an arbitrary or capricious, reasonableness, or de novo basis). In light of the broad discretion afforded the Secretary under Section 103(k), the Secretary argues claims that it is appropriate that Section 103(k) orders be reviewed under an "arbitrary or capricious" standard. See S. Rep. 95-181, at 29, reprinted in Legis. Hist. at 617 (Section 103(k) authorizes the Secretary "to exercise broad discretion in order to protect the life or to insure the safety of any person") (emphasis added); see also Miller Mining Co., 713 F.2d at 490 ("Section 103(k) gives MSHA plenary power to make post-accident orders for the protection and safety of all persons") (emphasis added). The Secretary argues that in Miller Mining Co., the court effectively applied that standard, holding that MSHA's modification of a Section 103(k) order was "reasonably tailored to the situation." 713 F.2d at 490.

            The Secretary further notes that the Commission in Twentymile Coal Co., 30 FMSHRC 736 (Aug. 2008) applied the following guidance in determining if the actions of a district manager were arbitrary and capricious:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." In reviewing the explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

30 FMSHRC at 754-55, quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). See also Emerald Coal Resources, 30 FMSHRC 122, n. 1 (Jan. 2008) (ALJ Zielinski) ("While the Act does not specifically provide for review of section 103(k) orders, the Commission has jurisdiction to review such orders under an abuse of discretion standard.”). Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980)."); Southern Ohio Coal Co., 13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras) (holding that the issuance of the 103(k) order was "not an unreasonable or arbitrary abuse of [the inspector's] authority or discretion.").

            The Secretary emphasizes that "[a] party seeking to have a court declare an agency action to be arbitrary and capricious carries 'a heavy burden indeed.' " Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quoting Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). That party must show that the agency has failed to consider relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), has made a clear error in judgment, see id., or has failed to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The arbitrary and capricious standard of review is "highly deferential" and "presumes the validity of agency action." City of Portland, Oregon v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) (citations and internal quotation marks omitted).

            The Secretary argues that the scope of the section 103(k) order in this case was based on the fact that the roof fall had occurred from cap rock. She notes that in approving the ground control plan, MSHA accepted Contestant's representations that throughout its mine, roof mined to cap rock needed to be scaled, but otherwise needed no additional support and would not fall, where there were no brows, potholes, or cap rock thickness of less than four feet. The Secretary argues, however, that none of thoseconditions obtained where the roof fell. Moreover, the Secretary highlights the mine’s extensive history of roof falls, including falls from roof mined to cap rock without brows, potholes, or cap rock less than four feet thick. The Secretary emphasizes that after the instant roof fall MSHA now considers bolting and meshing to be the best method to insure miner safety in this mine. Since the fall was from roof that Contestant believed to be the safest, MSHA concluded that the safety of other roof in the mine south of crosscut L that was not bolted and meshed – some of which already had, or was scheduled to have, some type of ground support – was called into question. Accordingly, MSHA issued the section 103(k) order prohibiting all activity in the proscribed parts of the mine that are not bolted and meshed until an MSHA examination or investigation has determined that it is safe to resume mining operations in the area.

                                    C.         The Secretary Argues That the Commission Does Not Have Authority to Modify the Issuance of a Section 103(k) Order

            The Secretary notes that Contestant has asked the Court to modify the section 103(k) order as issued by limiting its scope to the 12AR of the mine where the roof fall occurred, citing Tr. 47 ("The only relief we want is to limit the order -- under the temporary relief provision, the only relief we want is to limit the order to the area affected, which is the area where the fall occurred."); see also Contestant's Motion for Decision Without Briefing on Scope of 103(k) Order at 1-3 (requesting invalidation or restriction of the scope of the section 103(k) order).

            With respect to temporary relief under 105(b)(2) of the Act, the Secretary relies on Performance Coal Co. v. Fed. Mine Safety & Health Review Comm'n, 642 F.3d 234, 239 (D.C. Cir. 2011), where the D.C. Circuit held that “§ 105 means what it says: temporary relief is available from any modification or termination of any order or from any issuance of an order under § 104." Accordingly, the Secretary argues that while the Commission can grant temporary relief under Section 105(b)(2) of the Act from the modification or termination of a Section 103(k) order, it cannot grant temporary relief from the issuance of a Section 103(k) order, which is the relief sought by Contestant in this case.

                                    D.        The Secretary Argues That Contestant Is Not Entitled to Temporary Relief Under Section 105(b)(2) Because It Has Not Established a Substantial Likelihood That It Will Prevail, Nor Has It Established the Requested Relief Will Not Adversely Affect the Health and Safety of Miners

            The Secretary notes that even if section 105(b)(2) relief is found to be available to Contestant, it is conditioned on a showing by Contestant that: (A) a hearing has been held in which all parties were given an opportunity to be heard; (B) the applicant shows that there is a substantial likelihood that the findings of the Commission will be favorable to the applicant; and

(C) such relief will not adversely affect the health and safety of miners.

            The Secretary argues that Contestant has made no showing of substantial likelihood, particularly since its arguments are based primarily on its position that the roof fall was not an accident. The Secretary relies on her showing that the scope of the order is appropriate and not arbitrary and capricious. In addition, the Secretary highlights additional evidence at the hearing, in part from Contestant's expert, which purportedly shows that the possibility of roof falls throughout Contestant's mine, with concomitant harm to the health and safety of miners, exists throughout the mine, and not just in the 12 AR section where the instant roof fall occurred. The Secretary notes that Contestant's expert has seen specific areas of cap rock failure and expressed concern about the air-slake process as the key to a lot of the other failures. Tr. 307, 311. Given such evidence, the Secretary argues that Contestant has not shown that temporary relief from the Section 103(k) order will not adversely affect the safety of miners.

                        2.         The Section 104(a) Citation under 30 C.F.R. § 57.3360

            Using the coal mine plan-dispute case law as a guide, the Secretary argues that Contestant can violate Part 57.3360 even though it may be complying with an agreed-upon roof control plan. The Secretary notes that coal mine plans, including ventilation, roof control, or other plans, are negotiated between MSHA officials and operators, and are intended to address dynamic conditions in specific mines. She notes that conditions in any given mine may change faster than the parties can negotiate new plan terms, and it is the operator's responsibility to monitor and ensure that hazardous conditions are corrected.

            The Secretary argues that in agreeing to a ground control plan, Contestant conceded that ground control was "necessary" for purposes of 30 C.F.R. Part 57.3360, which requires that “system” to "be designed, installed, and maintained" when "ground conditions, or mining experience in similar ground conditions in the mine," suggest its necessity, especially if the system or components of that system need to be changed. The Secretary argues that neither "plans" in the coal mine context, nor "systems" in the context of Part 57.3360, are static concepts or documents, and to construe them otherwise essentially relieves an operator of its fundamental responsibility under the Mine Act.

                                    A.       The Case Law in the Coal Mine Plan-Dispute Context Demonstrates that Contestant Can Violate 30 C.F.R. § 57.3360 Despite Compliance With An Agreed-Upon Plan

            The Secretary emphasizes that coal mine dispute plans (by analogy) are not "contracts," are continuous in nature, and require good-faith negotiations between MSHA and the operator to maximize safety and health provisions for miners in the context of a particular mine. See, e.g., Penn Allegh Coal Co., 3 FMSHRC 2767 (Aug. 1981). She notes that even Contestant's expert recognizes that the dynamic nature of the mining environment requires constant attention to the provisions in a plan. Tr. 300, 308-311.

            The Secretary argues that in coal cases, an operator may fail to comply with a standard even though it fulfills all conditions of an approved plan. See Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm'n, 519 F.3d 1176, 1191-93 (10th Cir. 2008). For example, in Plateau Mining, the operator appealed from a Commission decision that it could be violating a ventilation standard even though it had fulfilled all the conditions of its approved mine ventilation plan. Id. The Commission recognized that "mine ventilation is a dynamic process" and that "the provisions of a ventilation plan may not be able to address every contingency." Id. at 1192. In affirming the Commission, the Tenth Circuit noted that the Third Circuit had reached the same result in Cumberland Coal. Res., LP v. Fed. Mine Safety & Health Review Comm'n, 515 F.23d 247, 254 (3d Cir. 2008) (compliance with an approved ventilation plan was not a defense to a violation of 30 C.F.R. § 75.334(b)(1)).

            Similarly, the Secretary relies on language in Utah Power & Light Co. v. Secretary of Labor, 951 F.2d 292 (10th Cir. 1991), where the Tenth Circuit stated:

It seems clear that the prohibition against accumulation (embodied in both statute and regulation) has independent significance. Petitioner's contentions that it is void for vagueness or arbitrariness, or is somehow merged into or limited by the requirement of a cleanup plan (so that the plan formulated by the company constitutes a "safe harbor" superseding the prohibition against accumulations unless and until the Mine Safety and Health Administration points out defects in the cleanup plan) are utterly unpersuasive.

Id. at 295.

            The Secretary acknowledges, however, that for an operator to violate the standard, it must be on notice of the problem, and the adequacy of any particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard. Canon Coal Co., 9 FMSHRC 667, 668 (April 1987); see also Plateau Mining Corp., 519 F.3d at 1192 (quoting from Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)). The Secretary notes that in Canon, the Commission found that there had been no objective signs prior to the roof fall that would have alerted a reasonably prudent operator to provide additional support, and therefore vacated the citation. Id. Similarly in Newmont Gold, a case in which David West also testified as an expert, the Secretary notes that the "Leaky Fault" that caused the ground fall was "subtle, variable and unpredictable." Newmont Gold Co., 20 FMSHRC 1035, 1039 (Sept. 1998) (ALJ Cetti). Moreover, she notes that Judge Cetti found that geological faults, many of which were undetectable until mined through, were present throughout the mine, and insufficient to have alerted a reasonably prudent operator to provide additional support. Id. at 1040.

            The Secretary argues that unlike Newmont Gold, the conditions at the Pattison Mine mine provided ample warning to Contestant. She argues that Contestant's expert readily found objective signs that existed prior to the roof fall that should have alerted Contestant of the need for additional roof support - specifically that "the strength of the cap rock has been compromised by the presence of a gully on the surface topography." Tr. 293. The Secretary argues that this finding wholly substantiates the Secretary's position that the plan did not work and was in violation of the standard, despite approval of the plan and the fact that Contestant was not violating the plan. Moreover, while West concluded that the AR 12 ground fall was "unique to that location primarily due to the surface gully" (Tr. 296, see also Tr. 304-305), a conclusion that the Secretary's expert disputes, the Secretary argues that West clearly acknowledged other roof falls and the possibility of roof falls throughout Contestant's mine, with concomitant harm to the health and safety of miners by testifying that he has seen specific areas of cap rock failure. Tr. 307.

            Furthermore, when asked by the Court if he would make any modifications to the existing plan, West opined that a better or improved level of understanding of the air-slake process, which he viewed as key to a lot of the failures, would be facilitated by "some simple robust implementation." Tr. 310-311. The Secretary argues that this testimony is further evidence that an approved plan does not thereby become inexorably a plan that works, and a plan that "is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard." Canon, 9 FMSHRC at 668. Accordingly, the Secretary argues that Contestant can be in full compliance with the plan and still violate Part 57.3360, particularly since Contestant was well aware of the roof hazards at this mine.

                                    B. The Secretary Argues That the Cited Condition

                                          Violated the Standard and was S&S

            The Secretary notes that to establish a violation of 30 C.F.R. § 57.3360, the Secretary must prove that: 1) "support" was not used or was not "designed, installed, and maintained;" 2) to control "ground;" 3) in places where persons work or travel in performing their assigned tasks; and 4) where ground conditions or mining experience in similar ground conditions in the mine indicate that it is necessary. The Secretary further notes that the standard applies to the conditions and mining methods in use at Contestant's underground mine, and its purpose is to insure that Contestant's miners are not injured by rock material while doing their jobs by keeping the rock in place.

            Briefly recounting the facts, the Secretary states that this case involves a twenty to thirty ton roof fall, i.e., a fall of ground, about one month after the Secretary and the Contestant had agreed upon a support system to be used at Contestant's mine to control ground fall. (Sec. Exs. 5 & 6). That support system, however, failed to control the ground, as evidenced by the roof fall, which landed partially on a scaler being operated by one of Contestant's miners, who was performing his assigned task of scaling. The Secretary argues that given the numerous other cap rock and other roof falls in other areas of this mine, the extant support system did not control the ground as mining to cap rock and scaling was not adequate to insure miner safety. Consequently, the Secretary contends that the existing support system needs to be changed so that it will be designed, installed, and maintained to control the ground in places where persons work or travel in performing their assigned tasks.

            With regard to the designation of the alleged violation as significant and substantial ("S&S"), the Secretary asserts that she satisfied all four prongs of the Mathies test. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). Specifically, the Secretary argues that the above-described violation of the standard contributes to the discrete safety hazard of uncontrolled ground and concomitant roof falls that are reasonably likely to hit and result in serious or fatal injury to a miner.

            In sum, the Secretary requests that Order No. 8659953 and Citation No. 8659952 be affirmed.

            B.        The Contestant’s Arguments

                        1.         Contestant’s Argument That the Secretary

                                    Had No Basis to Issue the Citation

            The Contestant argues that the Secretary failed to adduce any evidence establishing the existence of any violation warranting the issuance of the Citation. Indeed, MSHA admitted that it issued the Citation not because Pattison committed any violation, but in an effort to undo the the ground control plan approved only four weeks earlier. Contestant asserts that apparently MSHA did not know what the appropriate procedural vehicle was for rescinding its approval of the plan, but issuing a baseless citation was not appropriate.

            Contestant also argues that MSHA cannot cite an operator for a violation if the operator did not receive "fair notice of the agency's interpretation" of a standard. Alan Lee Good, 23 FMSHRC 995, 1005 (2001). Contestant notes that liability under 30 C.F.R. § 57.3360, a broad safety standard concerning the adequacy of particular roof support or other control, is resolved by reference to an objective standard of what action a reasonably prudent person familiar with the mining industry and protective purpose of the standard would have provided in order to meet the protection intended by the standard. See Newmont Gold, 20 FMSHRC at 1038 (quoting Canon Coal Co., 9 FMSHRC 667 (1987)). "The safety standard must 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" Asarco, Inc., 14 FMSHRC 941, 947 (1992) (citations omitted). As ALJ Cetti observed in Newmont Gold:

[T]he fact that there has been a ground fall does not mean there has been any violation of regulatory requirements. Underground mining is an inherently dangerous activity. Conditions sometimes are such that despite the operator's best efforts, roofs fall. It has been stated many times that "even good roof can fall without warning."

20 FMSHRC at 1037-38 (quoting Consolidated Coal Co., 6 FMSHRC 34, 37 (1984)).

            Contestant argues that in this case, the Secretary had to do more than point to the fact that a roof fall occurred. Rather, to establish a violation, the Secretary must prove by a preponderance of the evidence that the roof support in place at 12AR on November 7, 2011, differed from "what a reasonably prudent person . . . would have provided in order to meet the protection intended by the standard." Id. Contestant claims that the Secretary never made such an offer of proof at the hearing, in fact, the exact opposite was shown. Specifically, at the time of the roof fall, Pattison was operating under, and complying with, the MSHA-approved ground control plan in good faith. Tr. 36, 170, 173, 177, 236, 255. Applying the objective standard, Contestant argues that it would have been unreasonable for Pattison to do anything other than strictly comply with the agreed-to plan and MSHA’s approval and Pattison's adherence should be de facto evidence showing no violation.

            Moreover, Contestant argues that the Secretary failed to provide Pattison with any notice that Pattison was required to engage in some form of ground control above and beyond that required in the four week-old plan. Contestant relies on the following language from the judge’s decision in Beco Constr. Co., Inc., 23 FMSHRC 1182, 1190 (2001) (ALJ) to argue that once MSHA approved the ground control plan, it was precluded from issuing a citation for failure to have an "adequately designed, installed and maintained" ground control system, without first notifying Pattison that the plan was no longer sufficient.

In this instance . . . the agency directly misled Beco Construction as to what is required. By accepting the fencing to abate a previous violation, MSHA gave notice to Beco Construction that the fence met the requirements of the safety standard. . . . With respect to the present citation, however, [a reasonably prudent person] would not have realized that a guard was required at the cited head pulley because MSHA previously accepted the fence to abate a guarding citation. MSHA is required to provide notice that fencing is no longer acceptable under the standard before a civil penalty can be assessed for the failure to have a guard at the cited location..

            Contestant emphasizes that it is undisputed that Pattison was complying with the requirements of the agreed-to plan and that, prior to issuing the citation, MSHA failed to notify Pattison that the plan was no longer adequate to meet the requirements of 30 C.F.R. § 57.3360.

Accordingly, Contestant argues that the Secretary's acceptance of the ground control plan was equivalent to assurance that as long as Pattison complied with the plan's requirements, Pattison would be compliant with the applicable safety standard.

            In sum, Contestant argues that MSHA admitted it issued the citation to attempt to undo the imminent danger settlement or correct the ground control plan. Tr. 250-51. In addition, District Manager Richetta admitted his unfamiliarity "with how to address a plan that's in existence that is inadequate. I thought the way to do it would be through a citation. I don't know. Maybe there is another way to do it. I think the plan needs to be addressed. I don't know." Tr. 238. Given the agency's own uncertainty as to how to undo what it once agreed to, but now considers inadequate, Contestant argues that MSHA cannot claim that it gave "fair notice" of the alleged inadequacies and the citation must be vacated.

                        2.         Contestant’s Argument That the Secretary

                                    Had No Authority to Issue the 103(k) Order

A.The Argument That the 103(k) Order Does Not Meet the "Reasonableness" Standard of Review

            Despite acknowledging my decision in Pinnacle Mining Co., No. WEVA 2011-1758-R, 2011 WL 5894153, * 22 (Sept. 2011), which found that when MSHA denies approval of a coal operator’s plan to modify a 103(k) order, the appropriate standard of review is an "arbitrary or capricious" standard, Contestant submits that the appropriate standard of review is a "reasonableness" test because the Court is not called upon to review "plan submissions requiring MSHA approval, i.e., Emergency Response Plans (ERPs), ventilation control plans, and roof control plans, [where] the Commission has applied an arbitrary and capricious standard of review." Id. at * 23 (citing Emerald Coal Resources LP, 29 FMSHRC 956, 965-66 (Dec. 2007)). Contestant argues that issuance of the 103(k) order was unreasonable because no “accident” occurred, and even if there was an "accident," the Secretary failed to justify that the scope of the order was warranted given Pattison compliance with the approved plan. Contestant argues that section 103(k) restricts imposition of a control order to "affected areas" of a mine - here area 12AR, the location of the roof fall.

            Even if "reasonableness" is not the applicable standard, Contestant argues that the Secretary failed to adduce evidence "show[ing] that 'the MSHA investigation team leader did not act in an arbitrary and capricious manner in deciding to issue the 103(k) order.'" Clintwood Elkhorn Mining Co., 32 FMSHRC 1880, 1893 (Dec. 2010)(ALJ Gill) (quoting Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd 111 F.3d 963 (D.C. Cir. 1997)). Contestant claims that this standard of review requires the Secretary to prove that her designated representative did not commit an abuse of discretion when it shuttered virtually all of Pattison's underground mine. See Utah Power & Light Co., Mining Div., 13 FMSHRC 1617, 1623, n.6 (Oct. 1991). Contestant notes that “[a]buse of discretion may be found when there is no evidence to support the decision or if the decision is based on an improper understanding of the law.” Twentymile Coal Co., 30 FMSHRC 736, 765 (Aug. 2008) (opinion of Chairman Jordan and Commissioner Cohen). For the reasons that follow, Contestant argues that the Secretary abused her discretion when she issued the 103(k) Order.

                        B.        Contestant’s Argument That No "Accident" Occurred.

             Contestant relies on Commission precedent requiring dismissal of a closure order issued pursuant to Section 103(k) of the Act when the order is not predicated on an "accident” as that term is defined by the Mine Act." Aluminum Co. of America, 15 FMSHRC 1821, 1827 (1993).

Contestant notes that “accident,” as defined by the Mine Act, “includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person." 30 U.S.C. § 802(k).

            Contestant notes that it is undisputed that none of these events occurred. Tr. 35. Rather, the parties stipulated there was a roof fall while a single miner, sitting in mechanical equipment with a cab that protected him, was scaling cap rock pursuant to the approved plan. Tr. 36. The parties further stipulated that the fall "was not at or above the anchorage zone in active workings where roof bolts are in use" (Stip. 7, Tr. 35) and that it "did not impair ventilation nor result in an entrapment for more than 30 minutes or entrapment that had a reasonable potential to cause death." (Stip. 9, Tr. 36). Contestant claims that the area in which the fall occurred was infrequently accessed only for scaling purposes (relying on Tr. 148), and because the approved plan was still being implemented in the area, Contestant claims that it had not resumed mining operations there. (relying on Sec. Ex. 5 at 1, the ground control plan.) Accordingly, Contestant argues that MSHA failed to establish that the area where the fall occurred was "active workings."

            Contestant emphasizes that issuing inspector Hines told Pattison that the ground fall was not an immediately reportable event under 30 C.F.R. § 50.2, and argues, therefore, that no "accident" occurred. Tr. 37. Contestant questions how inspector Hines can determine that the roof fall was not an "accident" for mere reporting purposes, yet exercise virtually unfettered discretion to issue the 103(k) Order closing the mine based on the same roof fall.

            Contestant argues that the Court must give effect to the plain language of the statute when clear and unambiguous. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). Under the plain terms of 30 U.S.C. § 802(k), Contestant argues that no "accident" took place and the 103(k) Order must be vacated.

            Contestant challenges the Secretary’s argument that the word "includes" in Section 3(k) makes the accident definition "expansive" and the list of events non-exhaustive. Contestant also challenges her reliance on section 103(d), which states that "[a]ll accidents, including unintentional roof falls (except in any abandoned panels or in areas which are inaccessible or unsafe for inspections), shall be investigated by the operator . . . ., " and any reliance on Part 50 reporting and recordkeeping regulations (30 C.F.R. 50.2(h)(8)), which define immediately reportable ground fall "accidents" as "[a]n unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage."

            In this regard, Contestant argues that MSHA's investigation, reporting and recordkeeping regulations (which inspector Hines told Pattison were not triggered by the roof fall) cannot expand the limited congressional authority given to MSHA to close mines. Contestant argues that it is "[]permissible . . . to interpret an imprecise term differently in two separate sections of a statute which have different purposes." Verizon California, Inc. v. Fed. Commc'ns Comm'n, 555 F.3d 270, 276 (D.C. Cir. 2009) (quoting Abbott Labs. v. Young, 920 F.2d 894, 987 (D.C. Cir. 1990). Thus,"'[i]dentical words may have different meanings where . . . the conditions are different.' . . . Because of that possibility - different contexts dictating different interpretations - courts addressing the meaning of a term in one context commonly refrain from any declaration as to its meaning elsewhere in the same statute." Id. (emphasis added) (quoting Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996)). See also Bituminous Coal Operators' Ass'n, Inc. v. Hathaway, 406 F.Supp. 371, 375 (W.D. Va. 1975), aff'd, 547 F.2d 240 (4th Cir. 1977). Indeed, as the D.C. Circuit explained in Weaver, identical words may have different meanings where "the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another." Weaver, supra, 87 F.3d at 1437 (D.C. Cir. 1996) (emphasis added) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)).

            Contestant stresses that section 103(k) entrusts MSHA with tremendous authority to shut down a mine and deprive an operator of its property rights prior to obtaining due process. Conversely, section 103(d) and 30 C.F.R. § 50.2 require investigations and reports to be made only for certain roof falls. Based on the precedent cited, Contestant argues that it is reasonable to read the term "accident" to include certain roof falls in Section 103(d) and Part 50, but not to include anything other than the specifically enumerated items listed in 30 U.S.C. § 802(k). Indeed, Contestant asserts that it is unreasonable to read the statute any other way, particularly here where inspector Hines admitted that the roof fall was not even a "reportable" "accident."

            Additionally, Contestant argues that the word "includes" in a statute is not necessarily "expansive." In Oldja v. Warm Beach Christian Camps and Conference Center, 79 F. Supp. 2d 1208, 1213 (W.D. Wash. 2011), the court contrasted a California statute which "broad[ly]" defined the term "common carrier" with the Washington statute which it held "is narrow and exhaustive." Id. at *4. The Washington statute stated: "'Common Carrier' includes all railroads, railroad companies…." See, e.g,. Int'l Indus. Park, Inc. v. United States, --- Fed.Cl. ---, 2011 WL 4684284, at *15 (Fed.Cl. Oct. 7, 2011) (emphasis added) (rejecting expansive reading of contract to include more items than those enumerated after word "includes" and stating "the word 'includes' does not only apply to exhaustive lists; sometimes it is used for non-exhaustive ones").

            Contestant posits that the Secretary will rely on my decision in Pinnacle Mining Co., Docket No. WEVA 2011-1758-R, 2011 WL 5894153 (Sept. 2, 2011), which in turn [cited] Emerald Coal Resources, LP, 30 FMSHRC 122 (2008) (ALJ Zielinski) for the proposition that a "roof fall" is an "accident" sufficient to trigger application of Section 103(k). But in Emerald Coal Resources, the judge relied upon the definition of "accident" in Section 103(d) and applied it to Section 103(k), which Contestant claims is erroneous where, as here, one portion of the statute containing the defined term provides far greater power than the other portion of the statute containing the term.

            Finally, Contestant argues thast even assuming arguendo that certain "roof falls" do constitute "accidents" sufficient to trigger section 103(k), the roof fall at issue here is not one of them. Indeed, Contestant notes that even the judge in Emerald Coal Resources noted that only "unplanned roof falls in active workings of a mine are accidents under section 103." Emerald Coal Resources, 30 FMSHRC at 124. In this case, Contestant claims that there is no dispute that the roof fall which occurred on November 7 did not occur in "active workings." Moreover, MSHA agreed that the ground fall that led to the 103(k) Order was not even an immediately reportable event under Part 50 as it was stipulated that inspector Hines told Pattison this. Tr. 37. Contestant asks, if the incident was not "reportable" how could it be an "accident?" Thus, even under the Pinnacle and Emerald [analysis], Contestant argues that no "accident" occurred and the 103(k) Order must be vacated.

C.Contestant’s Argument That the Scope of the 103(k) Order, Which Virtually Shutters Pattison's Underground Mine, is an Abuse of Discretion

            Contestant states that in evaluating whether MSHA has abused its discretion based on lack of evidence, the Commission has taken its analysis from the Supreme Court's decision in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company:

[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." In reviewing the explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Clintwood Elkhorn Mining Co., 32 FMSHRC 1880, 1893-94 (Dec. 2010)(ALJ Gill) (quoting Twentymile Coal Co. 30 FMSHRC 736, 754-55 (Aug. 2008) (opinion of Chairman Jordan and Commissioner Cohen) (quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))), aff'd 111 F.3d 963 (D.C. Cir. 1997)); see also Pinnacle Mining Co., 2011 WL 5894153, at * 23 (ALJ McCarthy)("While the scope of review under the 'arbitrary and capricious' standard is narrow, [MSHA] must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made").

            Considering the factual record framed against the factors outlined above, Contestant argues that MSHA abused its authority when it effectively closed the Pattison Mine "south of crosscut L." Although the Secretary's witnesses consistently asserted at trial that the 103(k) Order was issued to protect miners from ground control failure throughout the mine, Contestant claims that the Secretary adduced no evidence to suggest that such conditions existed throughout the mine or anywhere other than the location of the November 7 roof fall. Thus, even if validly issued for 12AR, Contestant asserts that the 103(k) Order is over broad.

1.Contestant’s Claim That MSHA

                                                Failed to Analyze the Relevant Data

            Contestant highlights inspector Hines’ testimony that issuing the 103(k) Order to close Pattison's underground mine south of crosscut L was "the only option." Tr. 152-53. Contestant argues, however, based on Dr. Park’s testimony, that the evidence adduced to justify the scope of the Order was limited to the Secretary's presumption that because one area of the mine supported by cap rock suffered a roof fall, other unknown and unexplored areas of the mine are similarly susceptible. Tr. 112 ("Q: . . . was the caprock involved in the November 7th roof fall atypical? A: . . . whether or not this caprock was different, I can't speak to that."). Contestant emphasizes that every cap rock fall prior to November 7, 2011 had been known to MSHA prior to its acceptance of the ground control plan adopted to resolve these very issues. For MSHA to question whether the approved plan was sufficient to deal with rock fall in November 2011 when all the evidence was before it in August does not compute, says Contestant. In any event, Contestant claims that areas of the mine where MSHA officials found evidence of prior roof falls were closed and not subject to active mining, and therefore present no hazard to miners, relying on Tr. 218, 221.

            Contestant asserts that MSHA's failure to analyze relevant data and rely on an untested presumption is further illustrated by District Manager Richetta’s testimony that after Pattison officials notified MSHA that a roof fall took place in 12AR, he became concerned that the ground control plan "apparently wasn't going to be working" because the incident took place in an area where cap rock support was in place. Tr. 233-34. Two days later, on November 9, 2011, MSHA issued the 103(k) Order "[b]ecause … the roof fall fell in an area of the mine that was relying on caprock as being the primary support. And we felt that this could occur anywhere else in the caprock where the scaler was going to be working, where they were going to be milling." Tr. 234. Contestant claims that this presumption was not supported by any additional evidence, other than previous observations by Richetta and a belief that "it appeared that this was the same type of fall in other parts of the mine." Tr. 235. Furthermore, Contestant asserts that Richetta could not point to any area of the mine where cap rock was actually in danger of collapsing. Tr. 251.

            Contestant argues that Pattison's expert West offered evidence that completely discredits MSHA's theory. Unlike Dr. Park, who did not visit the mine to observe the ground control conditions after the roof fall, West visited the Mine on November 15, spent an entire day interacting with mine personnel, conducted an inspection and review of the ground conditions both underground and on the surface, and evaluated the geologic conditions against the extant ground control plan. Tr. 277-78, 281-82. Thus, after thoroughly reviewing the stratographic sequence in the ground above the cap rock in 12AR, and exploring scientific literature produced by sandstone mining experts regarding the geologic properties of cap rock in a sandstone environment, West concluded that the cap rock "is an excellent geotechnical material" that is "stable" and "really great material to excavate a hole in." Tr. 283-84.

            Contestant notes that after conducting this thorough, technical, and data-driven analysis, West concluded that the ground control plan was sound (Tr. 291), and that MSHA erred in determining the cause of the roof fall and the scope of the 103(k) Order. (Tr. 286-87, "There seemed to be … uncertainty or indecision on the part of MSHA on what the problem was and what the cause of the problem was at the mine"). According to Contestant, West opined that MSHA erred because the agency's conclusions were "based on opinion rather than any substance." (citing Tr. 287, indicating that MSHA reports regarding the cause of the roof fall were not supported by data) (emphasis added)). West further testified that as a mining engineer, he liked to see numbers, but in reviewing MSHA's comments and conclusions regarding pillar sizing and pillar design, which Contestant argues formed the foundation for the agency's conclusions regarding the safety of cap rock throughout the mine, West "didn't see" numbers to support MSHA’s reports. Tr. 287.

            By contrast, Contestant relies on West’s testimony that Pattison's experts conducted a vigorous and analytically sound evaluation regarding the strength of the cap rock throughout the mine, based on the standard safety factor of 1.4 for pillar strength in underground sandstone mines, and determined that the ground control plan’s reliance on the strength of the cap rock was sound. Tr. 288-90. Contestant relies on West’s further testimony that "Maochen [Assistant Professor at the University of Missouri, Rolla] took the MSHA technical support recommendations, actually calculated the existing pillar design layout, the pillar sizes and roadways at the mine . Even with low conservative strength values, he came up with a factor of safety of 1.7" Tr. 292. Contestant argues that this analytically driven conclusion not only rebuts the proposition offered by each MSHA witness, it undermines MSHA's justification underlying the scope of its 103(k) Order and illustrates a classic example of abuse of discretion in agency decision-making, which was never subject to a rigorous analysis of data and scientific principles.

2.Contestant’s Claim That MSHA

                                                Failed to Consider "the Gully"

            Contestant also faults MSHA's analysis for failing to explain why a fall occurred at 12AR, but nowhere else. Contestant attributes such error to MSHA’s failure to recognize the difference between cap rock present in 12AR and cap rock present throughout the rest of the mine. Contestant relies on West’s conclusion that "the strength of the caprock [in 12AR was] locally compromised by the presence of a gully on the surface topography," which allowed water or moisture to penetrate the cap rock and reduce its strength. Tr. 293. Contestant argues that this is important, because while cap rock in sandstone is initially strong, that strength deteriorates once water or "any sort of moisture" is introduced through either the surface of the stone, or when moisture is absorbed through the air. Tr. 286.

            In this regard, West testified that cap rock "[a]s a sandstone, it's stable and exhibits pretty good strengths until it gets wet, and then it becomes extremely friable." Tr. 284. He further explained that cap rock is "one of these materials that, if you put a solid piece of rock and immerse it in water, in a very short period of time, it will disintegrate." Tr. 285. Contestant then argues, without record citation, that this "slaking" effect resulted from the presence of a gully above the surface rock, and ultimately degraded the caprock from a strong substance in 12AR to the point where the roof fall occurred there. Contrary to West’s testimony above, Contestant then asserts on brief, without record support, that moisture alone does not impact the sandstone. If that were the case, contestant says there would be no mine. Rather, Contestant argues that there are other factors that interact with the moisture that cause potential problems - stresses from pillar, gradation, etc., and these items are already contemplated by the ground control plan. See, e.g., Sec. Ex. 5, at 1, detailing requirements for addressing pillars with pinch-out deterioration or those that show signs of significant degradation.

            Relying on West’s testimony, Contestant next argues that the record evidence demonstrated without dispute that ground conditions in 12AR are unique, and not prevalent throughout the rest of the mine: "I think the 12 AR ground fall is unique to that location primarily due to the surface gully that you mentioned. This doesn't exist in these other areas. So the extrapolation of those factors to the rest of the mine is a bit of a quantum leap." Tr. 296. Contestant notes that MSHA failed to evaluate this factor, and claims that West described this factor as critical for determining what "was the main driver that caused" the roof fall in 12AR. Tr. 294.

            Based on West's experience and testimony, Contestant argues that MSHA inappropriately drew a conclusion about the quality of cap rock throughout the mine by extrapolating results from the roof fall in 12AR. Tr. 295-96. Contestant further argues that this "quantum leap," which is akin to condemning an entire house for one faulty piece of drywall, fails to account for a significant factor contributing to the roof fall, and demonstrates an abuse of discretion.

            Contestant notes that when MSHA does not consider actual evidence of a failure, other judges have invalidated a 103(k) Order as an abuse of discretion. Contestant relies on Clintwood Elkhorn Mining Company, 32 FMSHRC 1880 (Dec. 2010), where ALJ Gill held that MSHA's imposition of a 103(k) Order was arbitrary and capricious - and an abuse of enforcement discretion - because of "the way in which MSHA dealt with the evidence of brake failure in order to promote the theory of overloading." Id. at 1894. There, Judge Gill addressed MSHA's decision to impose a 103(k) Order, which attempted to regulate truck load limits without express regulatory authority to do so, after finding that MSHA ignored "clear and reliable evidence of brake failure or deemed it so unlikely as to not warrant mention in … any of the citations and orders." Id. at 1895. Contestant notes that while the operator presented "clear and reliable" evidence that a truck rolled over pursuant to brake failure, and not overloading, MSHA officials refused to recognize brake failure as a potential cause of the incident and did not rebut such evidence. Id. at 1889 and 1895. Contestant cites the following passage from Judge Gill’s analysis:

There is no explanation why MSHA did not consider this evidence or factor it into its enforcement actions. Omission of the brake failure evidence impacts the assessment of the requirement that there be a rational connection between the facts found and the choices made. MSHA's decisions were not based on a consideration of the obvious relevant factor of brake system failure. This constitutes an unexplained and arbitrary failure to consider an important aspect of the problem.

Id. at 1895.

            Contestant argues that a similar result is warranted in this case because MSHA failed to rebut or even consider West's conclusion that moisture from the gully caused the roof fall. Contestant notes that West personally observed the underground and surface mining conditions and concluded that cap rock failure caused by moisture-driven slaking in 12AR is not prevalent throughout the rest of the underground area impacted by the 103(k) Order. Contestant emphasizes that in stark contrast, MSHA did not even examine the surface area surrounding the mine.

3.Contestant’s Claim That the 103(k) Order

                                                Is Implausible and Not Based on Agency Expertise

            Contestant states that MSHA’s ground control expert, Dr. Mark, has no expertise in sandstone mines or in ground control issues beyond the coal-mine environment. Tr. 67, 70. Contestant argues, therefore, that Dr. Mark, has no experience working in a sandstone mine, and no experience analyzing the particular rock formation and related dynamics unique to the sandstone mine environment. I have rejected these contentions, however, in my findings of fact at page 6, supra.

            Furthermore, Contestant emphasizes that Dr. Mark did not visit the mine after the roof fall incident that preceded the 103(k) Order. (Tr. 100, "I have not been at the mine. I have not looked at this particular roof fall.") In fact, Contestant notes that Dr. Mark has not visited the mine since August 19, 2011, and could not recall the precise areas of the mine he traveled in during that visit. Tr. 107, 116. And, Contestant notes, it was following that visit that Dr. Mark [reluctantly, Tr. 98-99] recommended MSHA's agreement to the ground control plan.

            Although Contestant concedes that Dr. Mark now has testified that something else should have been done, Contestant avers that he has absolutely no personal knowledge regarding the current condition of the mine or the specific conditions throughout the mine affected by the scope of the 103(k) Order. Accordingly, Contestant argues that Dr. Mark's conclusions regarding the appropriate scope of the 103(k) Order are arbitrary and biased and, therefore, without merit, and that any MSHA justification of the 103(k) Order based upon Dr. Mark's purported "expertise" should be ignored.

4.Contestant’s Claim That the 103(k) Order

                                                Improperly Affects Unaffected Areas of the Mine

            Contestant claims that the plain language of Section 103(k) restricts imposition of a control order to "affected areas" of the mine when an accident takes place. Contestant argues that reference to the overall construction of the Mine Act supports this understanding since in the context of an imminent danger under section 107(a), the Act only permits MSHA to impose a withdrawal order for the area affected by the alleged hazard. Contestant reasons that these provisions express Congress's desire to provide broad power to protect miners when MSHA recognizes a particular hazard, yet restrict the Agency's authority by limiting the power to order withdrawal to those areas actually affected by a specific hazard.

            Contestant further argues that while Section 103(k) provides the Secretary with enormous power to usurp an operator's control of its private property, the Constitution mandates that this power cannot be unlimited, and the legislative history of the Mine Act supports this conclusion. Contestant cites Senate Report language that a "closure order closes a mine or a portion of the mine affected by the particular condition or practice to all but essential personnel until such time as the conditions or practices resulting in its issuance have been abated." S. Rep. 95-181, at 11 (1977) reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 ("Leg. History"), at 617 (1978). In Contestant’s view, this language suggests that Congress contemplated providing the Secretary with authority to issue a closure order under certain circumstances, but limited to those areas affected by a certain condition.

            Even in an imminent danger scenario, which Contestant claims that MSHA knew it could not even allege in this matter (citing Tr. 153), the Secretary's authority is limited to closing the mine and withdrawing mine personnel from the areas affected. S. Rep. 95-181, at 35, Leg. History at 626. Contestant emphasizes that in the context of an imminent danger, Congress intended "that the Act give the necessary authority for the taking of action to remove miners from risk" in "situations where there is an immediate danger of death or serious physical harm." Yet, even in that dire circumstance, Congress still chose to limit that authority by instructing that an inspector "determine the affected area and issue a withdrawal order barring all persons . . . from such area." Id. at 625-26. Furthermore, Contestant notes that Congress made clear that "no temporary relief may be granted by the Commission from the issuance of such an [imminent danger] order," given "the importance of the imminent danger order as a means of protecting miners." Id. at 626. In this way, Contestant argues that Congress elevated MSHA's authority under Section 107 to respond to scenarios where an inspector encounters a dangerous situation, chose to restrict the Commission from granting operators temporary relief from imminent danger orders, and yet still restricted MSHA's authority to issue Section 107 orders to affected areas. Accordingly, Contestant argues that it would make no sense to interpret MSHA's authority under Section 103(k) in a more expansive fashion when Congress clearly provided MSHA with less expansive authority - and more due process - under that section. Contestant avers that expanding that authority via judicial interpretation would controvert Congressional intent.

5.Contestant’s Argument That MSHA Acted Unreasonably

                                    By Issuing A 103(k) Order That Obviates the Approved

                                    Ground Control Plan

            Relying on precedent that involved a citation under 30 C.F.R. § 57.3360, but no concomitant 103(k) order, Contestant argues that it is the Secretary's burden to establish that the 103(k) Order meets the "objective standard of what action a reasonably prudent person, familiar with the facts and the protective purpose of the standard would have taken to provide the protection intended" by the order. Newmont Gold Co., 20 FMSHRC 1035, 1038 (Sept. 1998) (ALJ Cetti)(citing Canon Coal Co., 9 FMSHRC 667, 668 (1987). Thus, Contestant argues that MSHA's decision to issue the 103(k) Order affecting areas beyond 12AR should be vacated because it is unreasonable in light of the existing and recently approved ground control plan.

            Contestant notes that MSHA accepted the plan, which retains all of the protective measures that MSHA agreed would sufficiently protect miners working throughout the mine. Although conceding that the plan contemplates that cap rock serve as one of many protective measures to support the roof throughout the mine, Contestant points out that the plan requires a great deal more, including a comprehensive approach to ground control that, on its face, contradicts the Secretary's assertion at trial that Pattison claimed cap rock alone would provide sufficient support throughout the mine. Tr. 237. Contestant cites language at the outset of the plan, which provides:

Prior to resuming mining operations in each area, the mine will carefully examine, scale or install additional support as needed in that area, beginning with accessing the entries leading to and from the centrifuge location, which will be examined and scaled as needed to make them safe for conducting work…

(Sec. Ex. 5, at 1) (emphasis added).

            Additionally, Contestant notes that the plan currently requires cap rock to be bolted and meshed where there is any indication that the cap rock has been compromised or is otherwise judged to be insufficient for support. Id. at 3. Contestant claims that the Secretary adduced no testimony that the plan, which Dr. Mark and others signed off on only four weeks prior to the instant fall in settlement of the 107(a) enforcement action, would not ultimately serve its intended purpose. Thus, Contestant argues it is unreasonable for MSHA to justify the 103(k) Order, which essentially prescribes a new ground control plan requiring bolting and meshing for all area south of crosscut L, when the existing, agreed-to plan already provides cap rock checks and balances.

D. In the Alternative, Contestant Argues That the Court

                                    Should Limit the Scope of the Section 103(k) Order

            Finally, Contestant argues that Section 105(b) of the Mine Act is a "marvel of Congressional clarity" that "means what it says: temporary relief is available from any modification or termination of any order or from any issuance of an order under § 104." Performance Coal Co. v. Federal Mine Safety and Health Rev. Comm'n, 642 F.3d 234, 238-39 (D.C. Cir. 2011). Under Performance Coal Company, Contestant argues that this Court possesses clear delegated authority to modify the existing 103(k) Order.

            If the Commission declines to vacate the 103(k) Order in its entirety, Contestant requests that the Commission modify and limit the scope of the 103(k) Order. In this regard, Contestant argues that the Secretary presented no evidence demonstrating that the areas beyond 12AR present dangerous conditions sufficient to justify the imposition of a closure order that eliminates a significant percentage of the mine's overall production and jeopardizes the mine's long-term production prospects and sustainability. Thus, Contestant’s original request for temporary relief, in the alternative to vacating the 103(k) Order, was to amend the last two modifications of the 103(k) Order to limit the scope of the withdrawal to the area affected by the ground fall, i.e., 12AR, the only location where conditions were affected by the fall. In addition, Contestant asserts that while the fall that triggered the 103(k) Order was not related to, and was geologically unique from, the inactive areas where the Secretary's witnesses identified other falls at the hearing, Contestant does not object to maintaining those inactive areas, identified by the Secretary's witnesses at trial, as inactive, unless and until they are cleared by the Secretary for reopening.

                        E.       Contestant’s Emergency Motion to Modify 103(k) Order

                                    1.         Nature of Alleged Emergency

            At the end of the hearing, the Court instructed the parties to "consult with your experts and see if you can sit down and make some revisions to this ground control plan that will permit you to get up and running as soon as possible" in a manner that is "as safe as possible." Tr. 345. Contestant states that as directed by the Court, it has been hard at work to undertake any and all efforts to investigate and abate any ground control issues at its underground mine, which effectively has been closed since November 9, 2011. To that end, Contestant asserts that Pattison, at considerable expense and cost, has continued to install bolts and additional ground support. At the same time, it has arranged for its experts West and Ge, to visit the underground mine on Monday, December 12-15, 2011. Contestant says that West is traveling a considerable distance for this work.

            As of this emergency filing, however, MSHA has refused to permit either expert to conduct inspection or investigation in the mine or to undertake any effort to examine, evaluate or test ground conditions in the mine. As set forth in Exhibit A to its Motion, i.e., e-mail correspondence between owner Pattison and Richetta between December 1 and 7, 2011, MSHA refuses to allow Pattison’s experts to travel anywhere in the mine where the roof is not completely bolted and meshed. According to Contestant, MSHA is well aware that this effectively prohibits any real examination or evaluation of the roof. Thus, Contestant argues that emergency relief is needed immediately to allow these experts to conduct their work starting December 12, 2011.

                                    2.         Factual Background for Emergency Motion

            Following the hearing, per the Court's instruction to the parties, Contestant avers that it has attempted to work with MSHA to refine the original MSHA-approved ground control plan based on objective data regarding ground conditions in the mine. To that end, Contestant asked MSHA to modify the 103(k) Order to permit Pattison and its experts to: (1) thoroughly inspect all areas of the underground mine for potential rock deterioration and to identify options for instrumentation and monitoring sites previously inspected on December 2, 2011 by Pattison expert West and MSHA inspector Chris Lehman; (2) scale in each area to determine if any deterioration has occurred and apply shotcrete as necessary; and (3) install ground movement monitors in appropriate areas to develop precise data regarding the quality of the ground control conditions throughout the mine. In so doing, Pattison sought to gather facts and analyze the ground conditions throughout the mine to demonstrate which areas, if any, require additional ground control support above and beyond what is already required by the original plan.

            Rather than agree to the proposal, or suggest an alternative, Contestant claims that MSHA summarily dismissed Pattison's proposal as "research oriented," and retrenched to its position that the only way the mine will be safe is if the entire underground mine has "8 feet of bolts with mesh." See Exh. A to Motion, e-mail from Richetta to Pattison dated December 7, 2011. Contestant claims that MSHA admitted at the hearing that ground conditions would not constitute an imminent danger to persons working in the mine since it lacked the evidence necessary to support any claim that ground conditions constituted an imminent danger. Tr. 153. Contestant asserts that MSHA’s correspondence attempts to recreate facts and evidences its refusal to allow any further dialogue or discussion about the improper 103(k) order since MSHA expressed its belief “that is not possible to determine the stability of the roof at the Pattision Mine from visual observation," but Pattison never made such claim. See Exh. A to Emergency Motion.

            In its response, MSHA also states that "Ground Movement Monitors are not an acceptable replacement for roof support in the Pattison Mine." Id. See Exhibit A. Contestant agrees and notes that it never made any claim to the contrary. Rather, Contestant says that its request is clear: it seeks to collect data and analyze data from the mine to further inform its evaluation and assessment of ground conditions and ground support measures.

            In addition, Contestant essentially asserts that MSHA's contention that “at present we believe the most appropriate support pattern is the one developed by Pattison's rock mechanics consultant and described in Pattison’s ground control plan, namely 8 ft[.] bolts with mesh" is simply false because Pattison's experts have never concluded that "the only way the roof can be 'made safe' is to install roof support," specifically "8 ft. bolts with mesh." Contestant asserts that was not MSHA's position before it issued the 103(k) Order, that is not what the original MSHA-approved ground control plan required, and that has never been endorsed by Pattison's experts. Contestant asserts that MSHA's attempt to claim otherwise is nothing more than an effort to support its decision to bar any activity until the entire mine is bolted and meshed.

            Contestant claims that MSHA's "bolt and mesh everything" position is based, at best, on an incomplete understanding of conditions in the mine, and it is abundantly clear that it will not revisit that decision for any reason, regardless of the facts. Worse, Contestant argues that MSHA is now doing everything it can to prevent Pattison from even collecting any data or information that could shed further light on conditions in the mine.

                                    3.         Emergency Motion Argument

            Contestant reasserts that the Commision may modify 103(k) orders issued by MSHA, citing Performance Coal Co. v. Federal Mine Safety and Health Rev. Comm'n, 642 F.3d 234, 238-39 (D.C. Cir. 2011). Contestant argues that the Commission should 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. Contestant argues that these actions will allow the parties, in an effort to protect miners, to rely upon a more objective, data-driven analysis of actual conditions in the mine, rather than MSHA's factually unsupported conclusions regarding those conditions.

            Contestant argues that modification is necessary because MSHA's position is, in essence, that Pattison may not enter the mine to obtain any data or information regarding the roof conditions. Contestant avers that MSHA's decisions to date regarding roof conditions and adequacy of roof support have not been supported by any objective data and MSHA is now working to ensure that such data will never even be collected or analyzed.

            Contestant notes that in refusing to modify the 103(k) Order to permit the collection of such data, MSHA’s December 7 correspondence claims that the potential value of collecting and analyzing such data is outweighed by the potential risk to those who would collect it, i.e., [“MSHA does not believe that proposed work plan justifies the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine.”]. Contestant argues that MSHA has no objective evidence that would quantify that potential risk, though it has [purportedly] admitted that ground conditions in the mine do not pose an imminent danger to miners working there. Tr. 153. Contestant notes that MSHA has permitted miners to enter the mine in order to install bolts and mesh, that bolting and meshing of the mine started several weeks ago, and that Pattison will continue with that work as long as MSHA allows it to continue. In these circumstances, Pattison asserts that it is hard to understand how the entry of Pattison's ground control experts to simply evaluate roof conditions and collect data puts them at risk.

            Furthermore, Contestant argues that modification is necessary to prevent MSHA from bypassing the agency's limited grant of authority under Section 107 and 104, which together authorize operators to maintain personnel in a mine to abate an alleged imminent danger. See 30 U.S.C. §§ 817(a); 814(c) (prohibiting the Secretary from ordering withdrawal of personnel "whose presence … is necessary … to eliminate the condition described in the order"). Contestant reiterates that at trial, MSHA officials [purportedly] admitted that the agency lacked legal authority to issue an imminent danger withdrawal order under Section 107. See e.g. Tr. 153. Yet, Contestant argues, MSHA's enforcement posture throughout this case indicates that MSHA considers Pattison's ground support throughout the underground mine to be akin to an imminent danger. Thus, Contestant argues that MSHA appears to be claiming authority it does not have under Section 103(k), which provides MSHA authority to issue control orders immediately following a reportable "accident," with the full knowledge that Section 103(k) does not expressly permit operators to reenter a mine for abatement purposes without government permission.

            Contestant says this action cries out for modification by the Commission. It argues that if the Commission sanctions MSHA's ability to reject reasonable operator requests for a modification of the 103(k) Order, it is sanctioning MSHA's imposition of completely, open-ended closure orders without the slightest bit of evidence of an imminent danger.

            Surely, argues Contestant, Congress did not intend for MSHA to borrow section 103(k) authority to respond to allegedly dangerous conditions that are more appropriately governed by section 107, and in a manner that eviscerates an important operator right under section 107. Contestant concedes that Congress granted MSHA authority under 103(k) to investigate and respond to an accident. Contestant argues, however, that section 103(k) applies only to safety orders in conjunction with accident recovery plans, during an accident, or in its immediate aftermath, when an inspector is present. See 30 U.S.C. § 813(k).

            Here, Contestant asserts, MSHA is not investigating an accident; it is merely imposing an abatement plan that is not founded upon analytical principles even though applicable ground control regulations do not provide it with authority to do so. Contestant argues that no miner needs recovery, no affected area of the mine needs recovery or return to normal (since the fall area is abandoned), and as illustrated at trial, MSHA cannot and has not produced a shred of credible evidence to suggest that conditions pose an imminent danger to miners in any specific area affected by the existing 103(k) Order. Consequently, Contestant argues that there is no ongoing "accident" at the Pattison Mine that requires the extreme measures MSHA has imposed - measures which are preventing Pattison experts from ascertaining precise insights into the mine's geological structure that will provide for a more objective, data-driven evaluation of conditions and the most appropriate ground control measures for the area affected by the section 103(k) Order.

            In conclusion, Contestant moves the Commission to modify the existing 103(k) Order to permit an appropriate, expert-crafted abatement plan to take place.

IV.      Discussion and Analysis

            A.      The 104(a) Citation is Vacated Because The Record Evidence Indicates That Contestant Lacked Fair Notice That It Was Violating 30 C.F. R. § 57.6360 After MSHA’s Approval of Its Ground Control Plan

            Initially, I reject Contestant’s argument that analyzing roof and ventilation control plan-approval case law in the coal context is irrelevant and of no value in analyzing this non-metal contest proceeding. Such precedent is helpful by analogy.

            I further reject any argument that Contestant’s compliance with the MSHA-approved ground control plan in settlement of the imminent danger enforcement action is an absolute defense to a citation under 30 C.F.R. § 57.6360. See Cumberland Coal. Res., LP v. Fed. Mine Safety & Health Review Comm'n, 515 F.3d 247, 254 (3d Cir. 2008) (compliance with an approved ventilation plan pursuant to 30 C.F. R. § 75.370 was not a defense to a violation of 30 C.F.R. § 75.334(b)(1) because significant problems with the wraparound bleeder system, which was not designed for a longwall panel of unprecedented size, were so significant that operator was required to submit a revised plan after initial citation and was on notice that bleeder system was ineffective to satisfy protective purposes of the standard); but see Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm'n, 519 F.3d 1176, 1191-93 (10th Cir. 2008)(substantial evidence did not support ALJ and split-Commission findings that operator had notice that bleeder system, which was in compliance with MSHA-approved ventilation plan, was not functioning effectively as required to establish violation of regulation’s mandatory standard where absence of any occurrence not anticipated by the plan indicates that there was nothing that should have put operator on notice that additional action, i.e., out-of-plan response, was necessary).

            In short, the validity of the instant citation turns on whether the evidence presented establishes that a reasonably prudent person familiar with the mining industry and the protective purposes of the ground support use standard embodied in 30 C.F.R. § 57.6360 would have recognized that the MSHA-approved ground control plan was ineffective prior to the instant roof fall on November 7, 2011. Cumberland Coal. Res., supra, 515 F.3d at 255; Canon Coal Co., 9 FMSHRC 667, 668 (April 1987); see also Plateau Mining Corp., 519 F.3d at 1192 (quoting from Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)). Like ventilation, roof control is a dynamic process and conditions not anticipated by the ground control plan may arise that would alert a reasonably prudent operator that an out-of-plan response is necessary, but the absence of any such condition indicates that there is nothing that should have put an operator on notice that additional action was necessary. Plateau Mining Corp., supra, 519 F.3d at 1197.

            In Canon, the Commission vacated the citation where there had been no objective signs prior to the roof fall that would have alerted a reasonably prudent operator to provide additional support. 9 FMSHRC at 668. Similarly, in Newmont Gold, where expert David West also testified, the "Leaky Fault" that was the primary cause of the ground fall was subtle, variable and unpredictable and there was no evidence in the record to suggest that prior to the ground fall, Newmont had any reason to believe that the Leaky Fault posed any threat to the integrity of the ground. Newmont Gold Co., 20 FMSHRC 1035, 1039 (Sept. 1998) (ALJ Cetti).

            As noted, the Secretary argues that unlike Newmont Gold, the conditions at the Pattison mine provided ample warning because Contestant's expert West found objective signs that existed prior to the roof fall that should have alerted Contestant of the need for additional roof support - specifically that "the strength of the cap rock has been compromised by the presence of a gully on the surface topography." Tr. 293. The Secretary argues that this finding substantiates the Secretary's position that the plan did not work and was in violation of the standard, despite approval of the plan and the fact that Contestant was not violating the plan.

            In addition, while the Secretary disputes West’s conclusion that the AR 12 ground fall was "unique to that location primarily due to the surface gully" (Tr. 296, see also Tr. 304-305), the Secretary argues that West acknowledged other roof falls and the possibility of roof falls throughout Contestant's mine, with concomitant harm to the health and safety of miners by testifying that he has seen specific areas of cap rock failure. Tr. 307. Further, West acknowledged that he would make modifications to the extant plan, including a better understanding of the air-slake process – the key to a lot of the roof failures – which would be facilitated by "some simple robust implementation." Tr. 310-311. The Secretary argues that this testimony is further evidence that an approved plan does not thereby become inexorably a plan that works and a plan that "is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard." Canon, 9 FMSHRC at 668. Accordingly, the Secretary argues that Contestant can be in full compliance with the plan and still violate Part 57.3360, particularly since Contestant was well aware of the roof hazards at this mine.

            I do not find the Secretary’s arguments persuasive. Her contentions overlook the fact that West’s expert services were retained by Pattison after the instant roof fall. Only then did West discover the gully and opine that it was the main driver contributing to the roof fall based on his post-fall investigation. Such knowledge cannot be attributed to Pattison before the instant fall. This is particularly so where MSHA’s experts, including Dr. Park, examined the mine, and presumably should have noticed the gully, before the instant roof fall, but nevertheless approved Pattison’s ground control plan.

            The Secretary’s arguments also fail to account for the fact that in Newmont Gold, like here, there was a history of prior ground falls. The credited testimony established that Newmont conducted an evaluation of the circumstances that led to the ground fall situation and modified its mining techniques and strengthened ground support in order to assure that ground falls based on similar circumstances would not occur in the future. 20 FMSHRC at 1048. Pattison did the same thing here after the August 2011 roof falls, and MSHA approved its ground control plan. Thereafter, the Secretary failed to provide Pattison with any notice that it was required to engage in some form of ground control above and beyond that required in the plan approved a month earlier.

            The record further establishes that the roof where the November 7 fall occurred looked good. Tr. 144. As ALJ Cetti observed in Newmont Gold:

[T]he fact that there has been a ground fall does not mean there has been any violation of regulatory requirements. Underground mining is an inherently dangerous activity. Conditions sometimes are such that despite the operator's best efforts, roofs fall. It has been stated many times that "even good roof can fall without warning."

20 FMSHRC at 1037-38 (quoting Consolidated Coal Co., 6 FMSHRC 34, 37 (1984)).

            Finally, District Manager Richetta candidly admitted that the citation was issued in an attempt to undo the imminent danger settlement or correct the ground control plan. “. . .The citation for 3360 is trying to undo the settlement or trying to correct the ground control plan . . .” Tr. 250-51. Further, Richetta admitted his unfamiliarity "with how to address a plan that's in existence that is inadequate. I thought the way to do it would be through a citation. I don't know. Maybe there is another way to do it. I think the plan needs to be addressed. I don't know." Tr. 238. In such circumstances, I agree with Contestant’s argument that given MSHA’s own uncertainty as to how to undo what it once agreed to, but now considers inadequate, Contestant was not given "fair notice" of the alleged violation.

            In these particular circumstances, I conclude that the Secretary failed to prove by a preponderance of the evidence that the roof support in place at 12AR on November 7, 2011 differed from what a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard." Newmont Gold, 20 FMSHRC at 1037-38. Accordingly, the record as a whole, does not establish a violation of the 30 C.F.R. § 57.6360. The section 104(a) citation is vacated, but the same does not hold true for the section 103(k) order.

            B.        The Section 103(k) Order Was Validly Issued Because

                        the November 7, 2011 Roof Was An “Accident” Within

                        the Meaning of the Mine Act 

            Alternatively, I find that the record evidence is sufficient to establish an accident occurred under the statutory definition of “accident” as interpreted by the Commission in Aluminum Company of America, 15 FMSHRC 1821 (Sept. 1993). The term “accident” as set forth in Section 3(k) of the Act “includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k). In Alcoa, 15 FMSHRC at 1824, the Commission determined that the definition of accident in Section 3(k) was not exhaustive, because the word “includes” is a term of enlargement. The Commission agreed, in general, with the Secretary’s argument in Alcoa that “an event not specifically listed . . . falls within the definition of ‘accident’ if it is similar in nature or presents a similar potential for injury or death as a mine explosion, ignition, fire or inundation,” but concluded that whether a specific event is similar in nature must be determined on a case-by-case basis. 15 FMSHRC at 1825-26.

            The 103(k) order in Alcoa was premised on a determination that a mercury contamination had occurred. While the Commission agreed with the Secretary that an injury or death occurring as a consequence of mercury exposure would constitute an “accident,” the Commission found no evidence of overexposure to, contact with, or injury or illness arising from the presence of mercury. See 15 FMSHRC at 1825. The Commission further found that “[t]he Secretary presented no evidence . . . that the mercury contamination . . . was similar in nature or presented a potential for injury similar to that of a mine explosion, ignition, fire or inundation,” i.e., “sudden events that pose an immediate hazard to miners and require emergency action.” Id. at 1826. Furthermore, the Commission emphasized in Alcoa that “the Secretary’s witnesses did not attempt to relate the hazards associated with the conditions in the area to an event similar to a mine explosion, fire or inundation . . . . and while an accident need not necessarily involve a sudden occurrence that creates an immediate hazard, the evidence in this case fails to support the Secretary’s argument that this particular gradual release of a toxic chemical was similar in nature or presented the same potential for injury as the events set forth in the statutory definition of accident.” Id. at 1827. The Commission rejected the Secretary’s argument that an unplanned and uncontrolled release of mercury, including a gradual release that creates a long-term hazard, is an “accident” under the Mine Act, solely because the evidentiary record developed was insufficient to establish that the hazards associated with the conditions in the alumina hydrate production facility were similar in nature or presented the same potential for injury as a mine explosion, ignition, fire or inundation. 15 FMSHRC at 1827-28.

            Applying this analysis here, I find that the instant roof presented a potential for injury or death similar to that of a mine explosion, ignition, fire or inundation. The record establishes that a unplanned roof fall or more than 30 tons occurred in an unbolted area mined up to cap rock and a portion of the fall landed on top of the scaling equipment being operated by a miner causing damage to the equipment and a near potential fatality. Commission precedent establishes that the deaths of most underground miners are caused by roof falls. See e.g., Big Ridge, Inc., Docket No. 2009-532, Slip Op. at 19 (Mar. 1, 2011)(Judge Miller) (reaffirming Commission precedent in Consolidation Coal Co., 6 FMSHRC 34, 37 n. 4 (Jan. 1984) that roof falls continue to be recognized by Congress, the Secretary of Labor, the Commission and the mining industry as one of the most serious hazards in mining and remain the leading cause of death in underground mines). In addition, unlike the evidentiary record in Alcoa, the Secretary’s expert and other witnesses specifically established that the hazards associated with unsupported roof conditions mined to cap rock presented the same potential for injury or death, much like a mine explosion, ignition, fire or inundation. Tr. 93, 100-01, 161, 168-69, 251, 253, 257.

            Finally, given the central role that 103(k) control orders play in MSHA’s statutory mission of advancing miner safety, Clinchfield Coal Co., 8 FMSHRC 1310, 1311 n. 2 (Sept. 1986), I conclude that the term “accident” must be broadly construed to effectuate the Act’s “primary purpose” of protecting miners. See Sec’y of Labor o/b/o Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989); 30 U.S.C. § 801(a); Donovan o/b/o Anderson v. Stafford Contruction Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (Mine Act must be broadly interpreted to further the congressional aim of making mines safe places to work.); Sec’y of Labor v. FMSHRC (Jim Walter Resources), 111 F.3d 913, 920 (D.C. Cir. 1997); Walker Stone Co., Inc. v. Sec’y of Labor, 156 F.3d 1076, 1082 (10^th Cir. 1998). Furthermore, to the extent that the statute is at all ambiguous, the Secretary’s interpretation of the term “accident” must be accepted as long as it is reasonable. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 5 (D.C. Cir. 2003). Finally, the Secretary’s litigating position before the Commission is as much an exercise of delegated lawmaking powers as her promulgation of a health and safety standard, and deserves deference. Excel Mining, 334 F.3d at 5.

            In these circumstances, I find that the Secretary has demonstrated by a preponderance of the evidence that an “accident” has occurred under the Mine Act and that issuance of the Section 103(k) Order was appropriate.

            C.        The Scope of the 103(k) Order Was Not An Abuse of Agency Discretion

            Section 103(k) provides:

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.

            The initial question presented is the appropriate standard of review of a 103(k) Order. For the reasons set forth in my decision in Pinnacle Mining Co., No. WEVA 2011-1758-R, 2011 WL 5894153, * 25-26 (Sept. 2011), I reject the operator’s request to apply a reasonableness standard. Instead, I apply an arbitrary and capricious standard of review. As more fully explained in Pinnacle Mining, supra, this standard appropriately respects the Secretary's judgment while allowing review for abuse of discretion, errors of law, and review of the record under the substantial evidence test. Cf. Emerald Coal Resources LP, 29 FMSHRC at 966. Moreover, under the Administrative Procedure Act, agency action is set aside when "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. § 706.

            In the context of this contest proceeding, this arbitrary and capricious standard involves a review of the record to determine whether the Secretary properly exercised her discretion and judgment in issuing the 103(k) order to encompass those areas underground that are south of crosscut L and not bolted or meshed, and in rejecting the Contestant’s December 6 request to modify the Order to permit its experts to examine and evaluate conditions, install monitoring equipment and conduct tests, which is further discussed in section IV, E, below. Tr. 161, 236; Sec. Ex. 4; see also Contestant’s Emergency Motion to Modify 103(k) Order. While the scope of review under the "arbitrary and capricious" standard is narrow, the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citations omitted). Normally, agency action is considered arbitrary and capricious if the agency has relied on factors which Congress did not intend that it consider; entirely failed to consider an important aspect of the problem; offered an explanation for its decision that runs counter to the evidence before it; or has taken a position so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. Id. (italics added); see also Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) ("abuse of discretion" has been found when "there is no evidence to support the decision or if the decision is based on an improper understanding of the law") (citations omitted).

            As the Secretary points out, "[a] party seeking to have a court declare an agency action to be arbitrary and capricious carries 'a heavy burden indeed.' " Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quoting Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000)). That party must show that the agency has failed to consider relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), has made a clear error in judgment, see id., or has failed to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made,' " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Thus, the arbitrary-and-capricious standard of review is "highly deferential" and "presumes the validity of agency action." City of Portland, Oregon v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) (citations and internal quotation marks omitted).

            This standard has not been met here. 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 Contestant’s argument on post-hearing brief at 19, Section 103(k) does not restrict imposition of a control order to “affected areas” of the mine, i.e., 12AR, the location of the instant roof fall. As the undersigned suggested at the hearing, such an interpretation does not account for the language in section 103(k) that authorizes MSHA, after an accident, as found above, to issue such orders as it “deems appropriate to insure the safety of any person in the coal or other mine,” and the operator shall obtain the approval of MSHA, when feasible, to “. . . recover the coal or other mine or return affected areas of such mine to normal.” Tr. 27-31. The italicized language is broad enough to encompass the whole mine, including unbolted and unmeshed areas south of crosscut L, and certainly extends beyond the affected area of 12AR.

            Further, MSHA’s approval or disapproval of any plan to recover the mine is discretionary. As the D.C. Circuit has stated, “the Secretary must independently exercise [her] judgment with respect to the content of . . . plans in connection with [her] final approval of the plan.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate Subcom. on Labor, Com. on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978). Moreover, analogizing to Commission precedent in the ERP context, “[u]ltimately, the plan approval process involves an element of judgment on the Secretary’s part.” Emerald Coal Resources LP, 29 FMSHRC at 965, citing Peabody Coal Co., 18 FMSHRC 686, 692 (May 1996) (“Peabody II”). “[A]bsent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the inclusion of specific provisions as a condition of the plan’s approval.” Id., citing C.W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or capricious where MSHA’s conduct throughout the process was reasonable). Here, after the November 7, 2011 roof fall, MSHA has taken the position that it is unwilling to allow any work south of crosscut L that is not performed beneath a bolted and screened roof. Tr. 251-52; see also Exh. A to Emergency Motion at 1.

            Contestant claims that in issuing the 103(k) Order, MSHA abused its discretion by failing to analyze relevant data, failing to consider the gully, failing to rely on Agency expertise, failing to limit the order to affected areas, and obviating the approved ground control plan. Alternatively, Contestant asks the Court amend the last two modifications of the 103(k) Order to limit the scope of the withdrawal to the area affected by the ground fall, i.e., 12AR. And, as this decision was readied for issuance, Contestant requests in its emergency motion that the Court order modification of the 103(k) order to permit its experts to examine and evaluate conditions, install monitoring equipment and conduct tests.