Pattison Sand Company, LLC

Plain-English summary

After a roof fall, MSHA withdrew miners from unsupported areas south of a mine crosscut under a section 103(k) order. The Eighth Circuit held that the Commission had authority to modify such an order and remanded Pattison Sand's requests to narrow the affected area or allow its experts to enter for monitoring and testing. Judge Thomas P. McCarthy accepted that authority but found the mine's roof-fall history and the failure of supposedly stable cap rock supported MSHA's broader restrictions. He also found that visual checks and monitoring were not substitutes for roof support, so he denied both requested modifications.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 813(k), 815(b)(2), 815(d), 817(a), and 817(e)
• Outcome: Pattison's requests to narrow the withdrawal area or allow expert access were denied, leaving the section 103(k) order unchanged.
• Key point: Authority to modify a section 103(k) order does not require modification when the record supports MSHA's broader response to unstable roof conditions.

Full text (FMSHRC public release)

FO#5D.WPD

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

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

November 9, 2012

PATTISON SAND COMPANY, LLC,

Contestant

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    
ADMINISTRATION (MSHA), 

Respondent

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CONTEST PROCEEDINGS

Docket No. CENT 2012-137-RM

Citation No. 8659952; 11/09/2011

Docket No. CENT 2012-138-RM

Citation No. 8659953; 11/09/2011

Mine: Pattison Sand Company, LLC

Mine ID:13-02297

DECISION ON REMAND

Before:            Judge McCarthy

Statement of the Case

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

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

Relevant Factual and Procedural Background

Pattison Sand Company, LLC (“Pattison” or “Contestant”) operates a sandstone mine in
Clayton County, Iowa. On November 9, 2011, after a roof fall in the 12 AR area of the mine two
days earlier, an inspector with the Department of Labor's Mine Safety and Health Administration
(MSHA) issued Order No. 8659953 pursuant to section 103(k) of the Act.

That order prohibited
activity in, and withdrew miners from, “all areas of the mine South of crosscut L that are not
bolted and meshed.” Pattison Sand Co., LLC, 33 FMSHRC 3096, 3097 (Dec. 2011) (ALJ
McCarthy).

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

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

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

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

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

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

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

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

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

688 F.3d at 515-16.

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

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

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

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

Analysis and Disposition on Remand

The doctrine of “law of the case” provides that when an appellate court has rendered a
decision and states in its opinion a rule of law necessary to that decision, that rule is to be
followed in all subsequent proceedings in the same action.

Accordingly, the terms of the
Court’s remand bind the Commission as the law of the case unless the Supreme Court grants
certiorari and vacates or amends the decision imposing the remand.

Applying the Eighth
Circuit’s decision as the law of the case, I find that the Commission has authority to modify
section 103(k) orders.

As the Court noted, however, the Commission may decline to modify
the order.

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

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

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

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

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

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

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

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

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

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

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

/tjr