FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 15, 2012

Before: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Duffy and Young, Commissioners

            These consolidated contest and civil penalty proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a citation to North American Drillers, LLC (“North American”) alleging a violation of the company’s shaft sinking plan when the operator used a non-permissible pump to remove water from a shaft. The Secretary of Labor subsequently vacated the citation and filed a motion to dismiss the penalty and contest proceedings. North American filed an opposition to the Secretary’s motion and requested declaratory relief regarding whether dewatering an otherwise completed mine shaft constitutes “excavation” under 30 C.F.R. § 77.1914(a) in violation of the plan’s terms. Administrative Law Judge Gary Melick granted the Secretary’s motion and did not address North American’s request for declaratory relief.

            North American filed a petition for discretionary review challenging the judge’s dismissal and his failure to grant or consider its request for declaratory relief. It requested that the Commission grant declaratory relief in its favor. We granted North American’s petition for review. For the reasons stated herein, we affirm the judge’s decision.

I.

Factual and Procedural Background

            North American is a contractor specializing in large diameter shaft drilling and construction for various commercial industries, including coal mining. On January 8, 2007, North American submitted a shaft sinking plan to MSHA to construct the Flannigan Portal Ventilation Shaft at American Coal Company’s Galatia Mine in Harrisonburg, Illinois. PDR at 2; S. Br. at 2. After receiving MSHA approval, North American began construction of the shaft in March 2007. Id.

            North American employs the “blind drilling” method of excavation, which differs significantly from the conventional “shaft construction” method. PDR at 2; N. Am. Opp’n to Mot. to Dismiss at 4. The latter requires drilling, shooting with explosives, and removing material through a mucking process. PDR at 2; N. Am. Opp’n at 4, Ex. E, at 38. The conventional method also requires that individuals work in the shaft during excavation. PDR at 2; N. Am. Opp’n at 4, Ex. E, at 38-39. In contrast, blind drilling consists of drilling, lining, and grouting while the shaft is filled with water, and is accomplished without the use of blasting and drilling. PDR at 2; N. Am. Opp’n at 4-6, Ex. E, at 30-35. Because all of the work is performed from the surface, blind drilling eliminates the need for individuals to work in the shaft. N. Am. Opp’n at 4, Ex. E, at 31. The final step of the process entails pumping water out of the shaft using a submersible pump. N. Am. Opp’n at 6. The motor and all electrical components of the pump remain below the water level in the shaft at all times during the dewatering process, thereby making “unlikely” the possibility of an electrical spark from the pump. N. Am. Opp’n at 6, Ex. E at 76. The water remains above the electrical components at all times, and if it drops below a certain level, the pump will not function. N. Am. Opp’n Ex. E at 78, 81-82.

            On August 30, 2007, North American had completed drilling, lining, and grouting the Flannigan Shaft and was in the final process of pumping the water out of the shaft. N. Am. Opp’n at 6, Ex. E at 67-72, E-2. MSHA Inspector Dean Cripps arrived at the Flannigan construction site and observed North American utilizing a non-permissible pump below the shaft’s collar. PDR at 5; N. Am. Opp’n at 7. As a result of his observations, Inspector Cripps issued Citation No. 6666927 to North American, alleging a violation of 30 C.F.R. § 77.1900-1, which requires that operators comply with their MSHA-approved shaft plans. PDR at 5; N. Am. Opp’n Ex. E-1; S. Br. at 2. The “Condition or Practice” section of the citation reads as follows:

A non-permissible submersible pump is being used below the collar of the Flannigan air shaft construction. The approved shaft and slope sinking plan requires all electric equipment used below the collar be permissible.

N. Am. Opp’n Ex. E-1. The approved January 8, 2007, shaft plan reads in pertinent part:

Paragraph 3(d)(vii):

The finished shaft will be dewatered using a submersible pump, which will be removed prior to underground personnel mining within 100' of the shaft bottom.

 Paragraph 10(b):

As per 30 C.F.R. § 77.1914, no non permissible electrical equipment shall be utilized below the shaft collar during excavation.

N. Am. Opp’n Ex. B at 14-15. The alleged violation was abated on September 5, 2007, after North American removed the non-permissible pump from the shaft. Pet. for Assess. Ex. A.

            North American contested both the citation and the associated civil penalty. The contests were consolidated, the parties conducted discovery, and the matter was set for hearing before Judge Melick.

            On April 3, 2009, the Secretary filed a Motion to Dismiss, stating that “MSHA is vacating the citation at issue in this matter based upon further review of the evidence.” S. Mot. to Dismiss at 1. North American opposed the motion and requested that the matter proceed to hearing, that an order be entered dismissing this matter with prejudice, or that declaratory relief be granted in the form of a ruling on the use of the term “excavation,” as applied to the requirements of section 77.1914(a). N. Am. Opp’n at 2, 11. In a letter dated April 2, 2009, counsel for North American memorialized a March 30, 2009, conversation in which he alleges that counsel for the Secretary announced that MSHA would cite North American in the future under the same regulation and the same facts despite the decision to vacate the citation at issue. N. Am. Opp’n at 7, Ex. C. Upon receipt of the letter, the Secretary’s counsel called counsel for North American and disputed the letter’s characterization of the March 30 conversation. S. Br. at 19 n.6. 

            The judge issued two orders of dismissal in the proceedings. The first order dismissed North American’s penalty proceeding with prejudice based on MSHA’s vacatur of the underlying citation. Unpublished Order dated April 9, 2009. The second order dismissed North American’s proceeding contesting the citation. Unpublished Order dated April 9, 2009. In dismissing the contest proceeding, the judge reasoned that MSHA’s vacatur of Citation No. 6666927 had rendered that proceeding moot. As support, the judge relied on RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 1993), in which the Commission held that the Secretary has unreviewable discretion to vacate citations. The judge did not address North American’s request for declaratory relief.

II.

Disposition

A.        Jurisdiction

            The threshold issue before us is whether the Commission maintains the requisite jurisdiction to consider North American’s challenge. The Secretary argues that section 105 of the Act, 30 U.S.C. § 815, only grants the Commission jurisdiction over “extant” enforcement actions brought by the Secretary and, because she has unreviewable discretion to vacate a citation, the Commission is without jurisdiction to consider North American’s request for declaratory relief. S. Br. at 8-11, citing RBK, 15 FMSHRC at 2101; Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7-8 (1985); Kaiser Coal Corp., 10 FMSHRC 1165, 1169-70 (Sept. 1988); and Reich v. Contractors Welding of Western New York, Inc., 996 F.2d 1409, 1412-13 (2nd Cir. 1993). The Secretary further contends that the Commission must defer to her reasonable interpretation of sections 105(a) and 105(d) in determining whether the Commission has jurisdiction over these proceedings. S. Br. at 6-7. North American responds that because section 105(d) of the Act grants operators the right to contest the issuance of a citation or order, and sections 105(a) and 105(d) confer jurisdiction upon the Commission to hear an operator’s contest, no unilateral action by the Secretary can divest the Commission of jurisdiction. N. Am. Reply Br. at 3-4.

            The Secretary misframes the issue. The question presented is not whether the Secretary’s exercise of discretion to vacate a citation is reviewable, but rather whether the Secretary’s exercise of that discretion automatically terminates or revokes this Commission’s jurisdiction in its entirety after it has been properly invoked. We hold that it does not.

             The Commission has acknowledged that it lacks authority to overturn a decision by the Secretary to withdraw or vacate a citation under the Mine Act. RBK, 15 FMSHRC at 2101, citing Cuyahoga, 474 U.S. at 7-8; Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996). The Commission and the courts have also recognized that under the Mine Act, Congress intended to delegate such enforcement authority to the Secretary, not the Commission. Mechanicsville, 18 FMSHRC at 879; Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006); Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 319 (4th Cir. 2008). Consequently, our decision in RBK directly overruled our holding in Youghiogheny & Ohio requiring that “adequate reasons” must exist to justify the Secretary’s vacation of a citation and subsequent motion to dismiss. Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (Feb. 1985) (“Y&O”).

            Although the Commission lacks authority to review the Secretary’s decision to vacate a citation, our jurisdiction over the proceeding does not automatically terminate upon vacatur. After an operator has contested a citation, section 105(d) authorizes the Commission to “issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation, order, or proposed penalty, or directing other appropriate relief.” 30 U.S.C. § 815(d) (emphasis added). Thus, section 105(d) unambiguously sets forth a broad grant of Commission authority to direct “other appropriate relief.” This statutory grant authorizes the Commission to retain jurisdiction to properly address any remaining legal and procedural requirements after the vacatur of a citation or order, such as questions of mootness or the appropriateness of declaratory relief. As the Commission has concluded, if it were to be deprived of jurisdiction when the Secretary vacates a citation, there would be no room for the Commission to ensure that cases over which its jurisdiction had been properly invoked could be dispensed with on terms that are in accordance with the Act. Climax Molybdenum Co., 2 FMSHRC 2748, 2750 (Oct. 1980), aff’d sub nom. 703 F.2d 447 (10th Cir. 1983); see also Mid-Continent Res., Inc., 12 FMSHRC 949, 957 (May 1990). Because we conclude that the relevant language of the Mine Act is unambiguous, we need not reach the Secretary’s argument that her interpretation is entitled to deference under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that deference to an agency’s interpretation of a statute may not be applied “to alter the clearly expressed intent of Congress”) (citations omitted).

            We further conclude that the Secretary’s reliance on Kaiser Coal is misplaced. See S. Br. at 9. In Kaiser Coal, we determined that, absent an extant enforcement action, we lacked jurisdiction over an application for declaratory relief. 10 FMSHRC at 1166. However, the present case is readily distinguishable from Kaiser Coal, in that the latter involved an operator that withdrew its section 105(d) contest as a condition of settlement and later filed a request for declaratory relief after the order terminating the proceeding had become final. Conversely, in the instant case, there has been no settlement or withdrawal of the contest, nor has there been an interruption of the Commission’s jurisdiction, which procedurally is terminated only by its final order. North American’s request for declaratory relief was filed well before the judge dismissed the proceedings, and was renewed by its timely filed petition for discretionary review.

            We find the Secretary’s reliance on Contractors Welding, 996 F.2d at 1409, similarly unavailing. Contractors Welding involved a settlement agreement reached while the parties’ case was pending on appeal. Id. at 1411. The settlement was conditioned on the Secretary vacating the related citation and OSHRC vacating its previous decision. Id. OSHRC, however, vacated the portion of the decision that affirmed the citation, but sought to preserve its analysis as valid precedent. Id. at 1412. The Second Circuit held that OSHRC’s action constituted an advisory opinion for which it had no authority, thus violating its appellate mandate. Id. at 1412-14. Factually, Contractors Welding bears little similarity to the instant case.

            In summary, based on the plain language of section 105(d), we conclude that once an operator has properly contested a citation pursuant to section 105 of the Act, the Secretary cannot, by vacating the citation, automatically divest the Commission of jurisdiction. Climax, 2 FMSHRC at 2750; Mid-Continent, 12 FMSHRC at 957. Accordingly, we hold that the Commission retains jurisdiction to properly address the operator’s questions of mootness and the appropriateness of declaratory relief.

B.        Mootness

            North American argues that because the Secretary has indicated that she will cite North American in the future under the same regulation and facts, it was plain error and an abuse of discretion for the judge to dismiss the proceedings as moot. N. Am. Br. at 13-15. It further contends that it will suffer collateral consequences in the form of continuing legal costs when it challenges MSHA’s future unsupportable citations issued under section 77.1914(a). Id. at 15-16. The Secretary counters that North American was cited for violating its plan for the Flannigan Shaft and, because construction of the Flannigan Shaft is complete, North American cannot be cited for violating that plan again. S. Br. at 20-21, Attach. 3 at 2.

            The Commission has recognized that concepts of mootness must be applied with care in the administrative setting. Mid-Continent,12 FMSHRC at 955. However, while the article III constitutional requirement of “case or controversy” does not literally apply to federal administrative agencies like the Commission, “an agency receives guidance from the policies that underlie the ‘case or controversy’ requirement of article III . . . . An agency acts within its discretion in refusing to hear a case that would be considered moot if tested under the article III ‘case or controversy’ requirement.” Id. (quoting Climax, 703 F.2d at 451).

            A case is moot when the issues presented no longer exist or the parties no longer have a legally cognizable interest in the outcome. Climax, 703 F.2d at 451-52 (finding issues moot and denying declaratory relief after the Secretary vacated the citations); Brent Roberts, 20 FMSHRC 1245, 1248 (Nov. 1998) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)) (finding issues moot after Secretary withdrew his proposed revocations of certifications and filed an unopposed motion for dismissal); Mid-Continent, 12 FMSHRC at 956 (holding enforcement action concluded and denying declaratory relief after Secretary vacated underlying citation and withdrawal order and sought dismissal of penalty proceeding). However, when there is a substantial likelihood that an allegedly moot question will recur, the issue remains justiciable. Mid-Continent, 12 FMSHRC at 955. Administrative orders also remain justiciable if they are short term orders capable of repetition, yet evading review. See, e.g., Climax, 2 FMSHRC at 2752. Additionally, voluntary cessation of a challenged practice does not render a case moot unless there is no reasonable expectation that the wrong will be repeated. Greater Yellowstone Coalition v. Tidwell, 572 F.3d 1115, 1121(10th Cir. 2009); see Reich v. OSHRC, 102 F.3d 1200, 1201 (11th Cir. 1997).

            The Secretary’s vacatur of the citation, along with the judge’s dismissal of the civil penalty with prejudice, eliminated the possibility that North American would be held liable for the alleged violation of its shaft plan for the Flannigan Shaft. Therefore, we conclude that these proceedings lack a live “case or controversy” as to Citation No. 6666927.

            Nonetheless, North American contends that there is a substantial likelihood that it faces recurrent harm because the Secretary has allegedly declared that she will continue to enforce section 77.1914(a) (the permissibility regulation) against North American in the future under identical circumstances. N. Am. Br. at 14, 16, 18. Here, the Secretary sought to enforce section 77.1900-1 (the plan compliance regulation), and although she freely admits that she will cite North American in the future under section 77.1900-1 if it is found to be in violation of its shaft plan, the Secretary is within the bounds of her authority to do so. Shaft plans are mine-specific and are thus designed to address the unique conditions of a particular mine. See Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987). Therefore, whether North American is cited in the future for use of a non-permissible pump below the shaft collar will have to be considered in the context of the specific language of the plan in question. Jim Walter Res., Inc., 28 FMSHRC 579, 589 (Aug. 2006). Thus there is not a substantial likelihood that the question before us will reoccur, causing North American additional harm. Hence, resolution of whether North American violated the shaft plan for the Flannigan Shaft, which requires that “no non-permissible electrical equipment shall be used below the shaft collar during excavation,” is not determinative of whether North American will violate some other plan for failure to use permissible equipment. See N. Am. Opp’n Ex. B, at 15 (emphasis added).

            North American further submits that the vacated citation is a “short-term order, capable of repetition, yet evading review.” N. Am. Br. at 14-15. We are not persuaded by this argument since there is no indication in the record that the Secretary makes a practice of citing operators, only to subsequently vacate the citations. See Climax, 703 F.2d at 452. Here, the Secretary chose to vacate the citation based on her review of the specific circumstances surrounding the alleged violation. The possibility of future citations being vacated under similar circumstances is purely speculative. We likewise find unavailing North American’s argument that it will suffer collateral consequences in the form of continuing legal costs. The Commission has found that the inconvenience of having to commence more than one suit is not “a hardship sufficient to justify review when the issues are not otherwise fit for judicial resolution.” ASARCO, Inc., 20 FMSHRC 1001, 1008 (Sept. 1998) (citations omitted).

            Additionally, North American argues that the Secretary’s vacatur of the citation does not render its contest proceeding moot because the Secretary’s “prosecutorial discretion” is wholly unrelated to an operator’s statutory right to “initiate and maintain a contest to the validity of the citation’s initial issuance under 105(d) of the Mine Act.” N. Am. Br. at 8-10; see PDR at 8 (emphasis added). This assertion cannot be reconciled with the Tenth Circuit’s holding in Climax, in which the court held that the issues before a Commission ALJ were rendered moot by the government’s vacation of a citation. 703 F.2d at 452.

            Here, North American has presented no extraordinary condition that warrants the conclusion that this case is not moot. The Secretary has chosen to forego prosecution by vacating the underlying citation, and the judge has dismissed the citation with prejudice. It would be counter-productive and procedurally burdensome for the Commission to allow the operator to pursue a contest proceeding that is devoid of live controversy. It also serves no purpose to force the Secretary to continue litigating the merits of a citation that she has determined to be legally or otherwise unworthy of prosecution. The Secretary’s power to vacate would be nullified if an operator were allowed to continue litigating the merits of a citation simply because it filed a section 105(d) contest. Accordingly, we conclude that the issue involved is moot.

C.        Declaratory Relief

            We now turn to the question of whether North American would be entitled to declaratory relief, assuming arguendo that the case was not moot. North American submits that the judge erred by not granting its request for declaratory relief because the Commission’s authority to grant such relief is well established. N. Am. Br. 17-18. It seeks a declaration that its shaft sinking plan only barred the use of non-permissible electrical equipment below the shaft collar “during excavation,” and that it was not engaged in “excavation” when it was dewatering the shaft. Id. at 5, 16.

            In rejecting an operator’s contention that the Commission was required to grant declaratory relief, the Tenth Circuit explained that the “Commission’s power to grant declaratory relief is clearly discretionary, see . . . 5 U.S.C. § 554(e). . . . [T]he Commission is not required to grant declaratory relief unless a failure to do so would be an abuse of discretion.” Climax, 703 F.2d at 452 n.4; see Mid-Continent, 12 FMSHRC at 953-54.

            The primary purpose of declaratory relief is “to save parties from unnecessarily acting upon their own view of the law.” Mid-Continent, 12 FMSHRC at 954 (quoting Beaver Creek, 11 FMSHRC at 2430). For a Commission judge to grant declaratory relief, the complainant must show that there is an actual, not moot, case or controversy between the parties under the Mine Act; that the threat of injury to the complainant is real, not speculative; and that the issue as to which relief is sought is ripe for adjudication. Id. Moreover, “when there is a substantial likelihood that an allegedly moot question will recur, the issue remains justiciable and declaratory judgment may be rendered to define the rights and obligations of the parties.” Id. at 955 (quoting 10B Charles Alan Wright et al., Federal Practice and Procedure Civil § 2757 (3d. ed. 2011)).

            North American has failed to make the necessary showing for declaratory relief. As stated, supra, there exists no live controversy between the Secretary and North American as to Citation No. 6666927, and no substantial likelihood that North American faces recurrent harm in the form of another citation predicated on the phrase “during excavation.”

            Even if the Commission were to declare that dewatering under the blind drilling method did not constitute “excavation,” it would not follow that North American would be free to use non-permissible pumps to dewater shafts in the future. Since issuance of the citation in question, the Secretary has required North American to include language in its shaft sinking plans similar to that in this plan, modified so as to exclude the term “excavation” but, nonetheless, requiring the use of permissible equipment. N. Am. Reply Br. at 11; Sec’y Br. at 22 n.7, Attachs. 4, 5. The modified provision states that: “The finished shaft will be dewatered in such a way as to be compliant with 30 C.F.R. § 77.1914(a). If electrical equipment is used below grade to dewater the shaft it will be permissible.” S. Br. at 22 n.7, Attachs. 4, 5 (emphasis added).

            This modified language demonstrates that the Secretary’s ability to enforce her policy regarding permissible pumps is not contingent upon the act of excavating or use of the term “excavation.” The language also significantly diminishes the likelihood that subsequent disputes will arise over the term “excavation” as it relates to non-permissible pumps, because the permissibility requirement is clearly uncoupled from the act of excavation. Indeed, counsel for North American acknowledged at oral argument that since issuance of the subject citation, North American has not been cited again for violation of its shaft plans. Oral Arg. Tr. at 20-21.

            In short, although North American ostensibly seeks to challenge the meaning of “excavation,” it appears that the actual issue for which it seeks relief is the broader question of whether MSHA may properly require the use of permissible pumps to dewater mine shafts when the blind drilling method is employed. However, as we have noted, in other situations the Secretary has required the use of permissible pumps in a shaft plan without using the term “excavation.” Thus, if North American were to prevail in establishing that dewatering does not entail “excavation,” it would have no effect on the Secretary’s enforcement of the Act, or on North American’s ability to use equipment it prefers. Because “[o]ne of the most important considerations that may induce a court to deny declaratory relief is that the judgment sought would not settle the controversy between the parties,” 10B Federal Practice and Procedure Civil, supra, § 2759, such relief is not appropriate here.

            It is well established that “absent 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.” C.W. Mining Co., 18 FMSHRC 1740, 1746 (Oct. 1996); see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983). The Secretary’s action in disapproving such a proposed mine plan may be overturned only if it is “arbitrary and capricious.” Emerald Coal Res., 29 FMSHRC 956, 966 (Dec. 2007). If North American wishes to challenge MSHA’s policy as arbitrary and capricious by proving that non-permissible pumps in blind drilling provide at least the same level of protection to miners as permissible pumps, there are suitable means to do so. In particular, North American could refuse to adopt the plan provision and accept a technical violation. See id. at 972; S. Br. at 28. This would better facilitate North American’s intended challenge and afford it more appropriate relief. North American has not instituted such a challenge here, and the factual record has not been developed in this regard. See Hollis v. Itawamba County Loans, 657 F.2d 746, 750 (5th Cir. 1981) (stating that in exercising their discretion to grant declaratory relief, courts may take into consideration the adequacy of the record for the determination they are required to make).

            As the Tenth Circuit has noted, “[t]he Commission may reasonably choose to reserve its use of declaratory relief for special cases in order to conserve its administrative resources.” Climax, 703 F.2d at 453. We choose to do so here. Because rendering an interpretation of “excavation” would contribute little toward North American’s ultimate goal of abolishing or even circumventing MSHA’s prohibition, we conclude that a grant of declaratory relief in these proceedings would not be an efficient use of judicial resources. Accordingly, we deny North American’s request for declaratory relief.

III.

Conclusion

            For the reasons discussed above, we hold that the judge did not err in dismissing the proceedings as moot. We also find that the judge did not abuse his discretion in refusing to consider or grant North American’s request for declaratory relief in the first instance. Accordingly, we affirm the judge’s decision.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Michael F. Duffy

                                                                                    Michael F. Duffy, Commissioner

                                                                                    /s/ Michael G. Young

                                                                                    Michael G. Young, Commissioner

Commissioners Cohen and Nakamura, concurring:

            We join the majority opinion and agree with our colleagues that the vacatur of the citation does not deprive the Commission of jurisdiction to consider the issues of mootness and declaratory relief. We also agree with our colleagues that the issue presented by North American – involving the phrase “during construction” in the shaft drilling plan – is moot, and that the Commission should not grant declaratory relief.

            We write separately in order to address more fully North American’s central assertion that an operator has the statutory right “to initiate and maintain a contest to the validity of the citation’s initial issuance under 105(d) of the Mine Act.” N. Am. Br. at 8 (emphasis added);

N. Am. R. Br. 3-4, 6-9; Oral Arg. Tr. 5, 11, 25, 29. North American contends that section 105(d) gives an operator the right to make a challenge “that is not just to the paper that it’s written but the facts under which that citation was first issued.” Oral Arg. Tr. 5. North American insists that the Secretary’s vacatur of the citation does not affect its right to challenge the “issuance” of the citation:

                        Thus, the fact that Congress provided a right to “contest the

                        issuance of a citation” in Section 105(d), while providing a more

                        limited right to “contest the citation” in Section 105(a) is

                        clear evidence that Section 105(d) allows an operator to contest

                        the issuance of the citation itself, and North American cannot be

                        divested of this right, nor the Commission divested of jurisdiction

                        to hear North American’s exercise of its right, by the Secretary’s

                        unilateral decision to vacate the citation.

N. Am. R. Br. 7-8.

            North American’s argument is based on a misreading of the statute. Contrary to North American’s assertion, section 105(d) does not provide a right to contest the issuance of a citation, as distinct from the citation itself. Rather, as discussed at the oral argument (Oral Arg. Tr. 12-19), section 105(d) sets forth the Commission’s jurisdiction in detail. It contains three separate types of jurisdiction involving contests filed by an operator, set out in three parallel clauses:

1. “the issuance or modification of an order under section 104;”

2. a “citation or a notification of proposed assessment of a penalty under subsection (a) or (b) of this section;” and

3. “the reasonableness of the length of abatement time fixed in a citation or modification thereof issued under section 104.”

See 30 U.S.C. § 815(d). The word “issuance” in section 105(d) is followed by the words “or modification of an order issued under section 104.” This relates to withdrawal orders based on failure to abate a violation, certain unwarrantable failure violations, S&S violations issued when an operator has been found to have a pattern of violations, respirable dust violations, and training violations.

            Thus, the statute does not state that an operator may contest “the issuance of a citation,” but rather “the issuance or modification of an order issued under section 104.” The right to contest a citation is contained in the second provision of section 105(d), which gives an operator the right to contest a “citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this section.” This is the provision under consideration in this case, and it does not mention the “issuance” of a citation.

            Nevertheless, North American argues that the word “issuance” in section 105(d) modifies all three provisions. Oral Arg. Tr. 13, 18. However, this reading of the statute makes no sense. The word “issuance” must refer to some specific action by the Secretary. Looking at the third provision, it makes no sense to say that the Secretary could issue “the reasonableness of the length of time set for abatement.” Plainly, the word “issuance” applies only to an order issued under section 104, as stated in the first provision of section 105(d).

                                                                                    /s/ Robert F. Cohen, Jr.

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Distribution

Robert H. Beatty, Jr., Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021