FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                       

September 27, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These contest proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). Pattison Sand Company, LLC (“Pattison”) operates a sandstone mine in Clayton County, Iowa. After a part of the roof fell in the 12 AR area of the mine, an inspector with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to Pattison Order No. 8659953, pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k). The order prohibited activity in, and withdrew miners from, “all areas of the mine South of crosscut L that are not bolted and meshed.” Pattison Sand Co., LLC, 33 FMSHRC 3096, 3097 (Dec. 2011) (ALJ).

            Pattison challenged the order before the Commission on the basis that no “accident” had occurred and that the scope of the order was an abuse of discretion. Id. at 3123-32. The operator requested that, if the Commission declined to vacate the section 103(k) order in its entirety, the Commission should modify the scope of the order by limiting the withdrawal to the area affected by the roof fall. Id. at 3133. Pattison also filed an emergency motion to modify the order to permit its experts to access the mine to examine and evaluate conditions, install monitoring equipment, and conduct tests. Id. at 3133-36.

            The matter proceeded to an evidentiary hearing before Administrative Law Judge Thomas McCarthy. Judge McCarthy affirmed the section 103(k) order, concluding that the roof fall was an “accident” and that MSHA’s issuance of the order did not constitute an abuse of discretion. Id. at 3139-47. The Judge held, however, that the Commission has no authority to modify the section 103(k) order. Id. at 3147. Additionally, the Judge reasoned that, if the modification request was alternatively viewed as a motion for temporary relief under section 105(b)(2) of the Mine Act, 30 U.S.C. § 815(b)(2), the request did not satisfy the prerequisites for temporary relief. Id. at 3148-49. The Commission thereafter denied a petition for discretionary review filed by Pattison.

            Subsequently, Pattison filed a petition for review in the United States Court of Appeals for the Eighth Circuit. The Court granted in part and denied in part the petition for review. Pattison Sand Company, LLC v. FMSHRC, 688 F.3d 507, 509 (8th Cir. 2012).

            The Court affirmed the Judge’s conclusion that the section 103(k) order was valid. Id. at 513. It determined that the Judge correctly reviewed the section 103(k) order under an arbitrary and capricious standard, and that substantial evidence supported the Judge’s finding that the scope of the order was neither arbitrary nor capricious. Id. at 513, 514. The Court also held that the Judge correctly determined that the roof fall was an “accident” within the meaning of the Act and affirmed, as supported by substantial evidence, the Judge’s determination that the instant roof fall qualified as an accident. Id. at 513-14.

            The Court concluded, however, that, contrary to the Judge’s rulings, the Commission has the power to modify section 103(k) orders. Id. at 516. The Court rejected the Secretary’s contention that if the Court concluded that the Commission has authority to modify a section 103(k) order, remand would not be necessary because the Judge determined that the scope of the Secretary’s original order was not arbitrary and capricious. Id. The Court reasoned that the Judge was proceeding under the assumption that he lacked authority to do anything but enforce the order as written or vacate it entirely. Id. The Court explained that it could not say that the Judge “would have reached the same conclusion had he recognized his authority to modify the order.” Id. Accordingly, the Court remanded Pattison’s requests for modification of the order to the Commission for its consideration. Id. The Court noted that, upon remand, the Commission may decline to modify the order, but that it is for the Commission to make a decision in the first instance. Id.

            On September 21, 2012, the court issued its mandate in this matter, thereby returning the case to the Commission’s jurisdiction. Accordingly, we remand this matter to the Judge for further consideration of the operator’s requests for modification of the section 103(k) order consistent with the Court’s decision. 

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chair

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Henry Chajet, Esq.

Patton Boggs, LLP

2550 M Street NW

Washington, DC 20037-1350

Jamison Poindexter Milford, Esq.

Office of the Solicitor

U.S. Department of Labor

Two Pershing Square Building, Suite 1020

2300 Main Street

Kansas City, MO 64108

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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 Thomas P. Mcarthy

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W. Suite 520 N

Washington, D.C. 20004-1710