Pattison Sand Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

A 20-to-30-ton roof fall struck and damaged an occupied scaling excavator in an unbolted cap-rock area of Pattison Sand's underground mine, but the miner escaped without injury. MSHA issued a ground-support citation and a section 103(k) order barring activity in unbolted and unmeshed areas south of crosscut L. Judge Thomas P. McCarthy vacated the citation because Pattison had followed a recently approved MSHA ground-control plan and lacked fair notice that additional support was required. He nevertheless held that the roof fall was an accident under the Mine Act and that the mine's history of cap-rock falls gave MSHA a rational basis for the broader withdrawal order. He affirmed the order and denied Pattison's requests to narrow it, allow expert monitoring work, or obtain temporary relief. The Eighth Circuit later affirmed the order's validity and original scope but reversed the judge's conclusion that the Commission lacked power to modify it, leading to a Commission remand.

Decision snapshot

• Governing provisions: 30 C.F.R. § 57.3360; 30 U.S.C. §§ 802(k), 813(k), and 815(b)(2)
• Outcome: The ground-support citation was vacated for lack of fair notice, but the section 103(k) withdrawal order was affirmed and Pattison's modification and temporary-relief requests were denied.
• Subsequent review: The Eighth Circuit affirmed the accident and scope rulings but held that the Commission could modify the order; the Commission remanded that issue in cent-2012-137-rm-commission.
• Key point: Compliance with a newly approved ground-control plan defeated the citation on fair-notice grounds, but the same roof fall and broader fall history supported MSHA's protective withdrawal order.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FO#5C.FRM

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

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

Order No. 8659953; 11/09/2011

Mine: Pattison Sand Company, LLC

Mine ID: 13-02297

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 Ҥ 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 

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

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 (10th 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 (9th 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.

Based on the record evidence, the court is not persuaded by Contestant’s motions and
evidence that the Secretary abused her discretion in issuing the 103(k) order to encompass those
areas underground that are south of crosscut L and not bolted or meshed, or in refusing to modify
the 103(k) order to accommodate Contestant’s post-hearing December 6, 2011 proposed work
plan until such bolting and meshing occurs. The scope of the 103(k) order was based on the fact
that the roof fell where mined to cap rock. Tr. 140, 159. In approving the ground control plan,
MSHA reluctantly accepted Contestant's representations that roof mined to cap rock needed to be
scaled, but needed no additional support, unless there were brows, potholes, or cap rock
thickness of less than four feet. Tr. 98-100, 250; Sec. Ex. 5 at 2. None of those conditions were
present where the roof fell on November 7 in what appeared to be good cap rock, as scaling
occurred. Tr. 144. Given the instant roof fall and the mine’s history of recent roof falls,
including falls from roof mined to cap rock without brows, potholes, or cap rock less than four
feet thick, MSHA made a reasoned judgment to reverse course from the approved ground control
plan and consider bolting and meshing to be the best method to insure miner safety in areas south
of crosscut L going forward. The court is not in a position to second guess that expert agency
judgment, nor substitute its judgment for that of MSHA. See Twentymile Coal, 30 FMSHRC at
754-55, quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43
(1983).

As the Supreme Court has recognized, an agency may change a past decision so long as
there are reasons for the change and those reasons are rationally related to the agency's new
decision. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 29, 42-43
(1983).

Put differently, the standard for review of agency action requires deference to the
reasonable decision of the agency in light of its expertise in the field. Id. Thus, the issue is not
whether other more limited areas could have been encompassed by the 103(k) order, but whether
the decision to extend the order to unbolted and unmeshed areas south of crosscut L was a
rational one. See id. at 43. Based on the record before me, I conclude that MSHA’s decision to
reverse course was rationally related to evidence surrounding the November 7 roof fall and
Contestant has failed to demonstrate a likelihood of success to show otherwise.

In this regard, since the fall occurred in roof that Contestant had represented was safest,
MSHA rationally 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, ground support,
was dangerous. Tr. 236-37. Accordingly, 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
has 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 has demonstrated that Contestant’s ground
control plan is no longer deemed sufficient to protect the safety of any person working in
underground areas south of crosscut L that are not bolted or meshed.

Even Contestant’s expert West eventually conceded that the ground control plan should
be revised to provide greater protection from failures resulting from moisture in the cap rock, i.e.
air-slaking. In this regard, West testified that some of the roof fall failures could have resulted
from moisture in the atmosphere moving into the cap rock, and that shotcreting should be
bolstered in the ground control plan. Tr. 313, 316.

Based on the evidence of other roof falls in cap rock in other areas of the mine, I do not
place much weight on West’s testimony that the cap rock failure in the area of the instant roof
fall (12 AR) was unique and likely resulted from the presence of the gully on the surface
topography, some 60-70 feet away from the compromised area. West failed to testify with
specificity about how he concluded that water from the gully reached the area of the November 7
fall and proximately caused the collapse. On the other hand, substantial record evidence,
including West’s own testimony, demonstrates that there is a moisture problem in the
underground workings that extends beyond 12 AR and would cause cap rock in unbolted and
unmeshed areas to become friable and subject to “air slaking,” thereby creating an ongoing
hazard of additional roof falls, the gully theory notwithstanding. Thus, West testified that while
cap rock in sandstone is initially strong, that strength deteriorates and it becomes “extremely
friable” once water is introduced or "any sort of moisture" is absorbed through the air, such as
through the ventilation system within a mine. Tr. 284-86. West further 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.

Even Contestant admits on post hearing brief at 29, that 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, citing
West’s testimony at Tr. 286, but omitting reference to mine ventilation system. Furthermore,
MSHA’s expert, Dr. Mark, confirmed 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 confirmed some relationship
between the stability of the cap rock, the potential for ground fall, and humidity. Tr. 123.

In these circumstances, I find that MSHA’s failure to attribute significance to the gully
does not make the scope of the order arbitrary and capricious. In fact, that Dr. Parks was aware
of the gully, when he replied on cross, “The little drainage creak that comes out and around
there? I can’t say that I did make specific notice of that.” Tr. 119. Indeed, Dr. Mark knew that
the gully on the surface was about 80 feet from the location of the November 7 roof fall. Tr.

120. Based on this testimony, I infer that Dr. Parks discounted any significance of the gully
     when he examined the mine in August. Rather, he credibly testified on cross that most
     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.

Even though Dr. Marks did not examine the mine after the November 7 roof fall, I was
persuaded by his expert opinion that it was proper for MSHA to focus in the 103(k) context on
the ability to estimate what the probability of a ground failure is going forward, which is
generally more reliable than a particular mechanism triggering failure. Tr. 122. In fact, on
redirect, Dr. Mark confirmed that 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. In this regard, Dr. Mark’s
recounted that MSHA knew that a 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, contrary to West, 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. I find this expert testimony persuasive, particularly
since West’s contrary testimony was weak and speculative on proximate cause, i.e., “the presence
of the gully on the topography which might allow the preferential ingress of water and moisture
and cause an air-slake problem” (tr. 294), and his later testimony imprecise testimony on probing
from the court that “[t]his [gully] has got something to do with it, the failure mechanism that
we’re seeing.” Tr. 323.

I find expert West’s gully theory unconvincing and too akin to the “Leaky Fault” theory
in Newmont Gold, in which West also testified as an expert under questioning from the same law
firm. The relationship between the Leaky Fault” theory that prevailed in Newmont Gold and the
leaky gully theory in Pattison Mine, where West never established that the gully actually leaked
into the affected area of the November 7 fall, is just too convenient for this judge to accept on the
existing record. I find West’s testimony contrived and I give more weight to Dr. Park’s expert
testimony that MSHA should consider the probability of a fatal roof fall given the instant roof
fall and the history of prior roof falls in areas mined to cap rock, and to the opinions of MSHA’s
experienced inspector Hines and District Manager Richetta, whose testimony established that the
ground control plan’s reliance on cap rock did not work and was unsafe. Thus, based on the
current roof fall and roof fall history in areas mined to cap rock, I conclude that MSHA was
within its broad authority under section 103(k) to determine, contrary to Contestant’s expert, that
the ground control plan’s reliance on the strength of the cap rock was no longer sound.

I further find Contestant’s reliance on Clintwood Elkhorn Mining Company, 32 FMSHRC
1880 (Dec. 2010) (ALJ Gill) to be misplaced as that case is readily distinguishable. There, a run-away truck jumped a berm and fell 110-150 feet when the brakes failed. The driver was not
injured. In light of the absence of injury, the judge found no “accident” that triggered section
103(k). The judge also found that MSHA failed to prove that the truck was overloaded and that
overloading was either a cause or contributing factor in the roll-over, as MSHA alleged. He
further found that MSHA had no authority to regulate truck load weight limit and abused its
discretion and acted arbitrarily when it conditioned the reopening of the prep plant on the use of
data to regulate truck load weight. In addition, the judge found that the evidence of brake failure
that MSHA refused to consider was “clear and reliable.”

Here, by contrast, there was an “accident” triggering section 103(k), substantial evidence
supports MSHA’s determination that the ground control plan’s reliance on unsupported cap rock
did not work and was unsafe, and the evidence of the gully that MSHA apparently discounted
was not clear and reliable, nor relied upon by Contestant prior to the contrived testimony of its
expert on the issue at the hearing.

In sum, MSHA considered or discounted relevant data and articulated a satisfactory
explanation for the scope of the 103(k), including a rational connection between the facts found
and the choice made. I conclude that the scope of the 103(k) order was not arbitrary and
capricious.

D.        The Commission Has No Authority to Modify MSHA’s 103(k) Order

Alternatively, Contestant asks the Court 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, i.e.,
the only location where conditions were affected by the fall. Furthermore, as this decision was
readied for issuance, Contestant requested 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.

Contestant cites no authority for the proposition that the Commission can modify a
103(k) Order. I find there is no such authority. A section 103(k) order is 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, 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 find that they likewise do 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 (De. 1998), quoting Mettiki Coal Corp., 13 FMSHRC 760, 764 (May
1991).

Accordingly, the 103(k) order must either be vacated, or affirmed, as written and
modified by MSHA. I have affirmed the scope of the 103(k) order, as modified by MSHA.

E.        Contestant’s Motion for Temporary Relief under 105(b)(2) and Emergency Motion
To Modify 103(k) Order Are Denied

The Commission does have authority under section 105(b)(2) to grant temporary relief
from any modification or termination of any order, including a section 103(k) order, or from any
order under section 104. See Performance Coal Co. v. Fed. Mine Safety & Health Review
Comm'n, 642 F.3d 234, 239 (D.C. Cir. 2011). Thus, 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 initially sought by Contestant in this case. See my November 30, 2011 Order
denying Contestant’s motion for decision without briefing, and denying Contestant’s motion for
certification of my interlocutory ruling.

In its eleventh-hour Emergency Motion, Contestant again 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. Essentially, this
Motion again improperly seeks relief to modify the 103(k) Order, which the Commission is
without authority to do. It does not seek temporary relief from modification or termination of the
103(k) order.

Moreover, even if I were to treat Contestant’s Emergency Motion to Modify the 103(k)
Order as a request for temporary relief from MSHA’s failure to grant the requested modification
on December 7, 2011, I find that Contestant’s Emergency Motion does not satisfy the
prerequisites for temporary relief under sections 105(b)(2)(A)-(C), as no hearing has been held in
which all parties were given an opportunity to be heard on that issue, Contestant has failed to
show a substantial likelihood that the findings of the Commission will be favorable to the
Contestant based on the analysis herein, and Contestant has failed to show that such relief will
not adversely affect the health and safety of miners. Rather, the Motion and its attached Exhibit
A shows that MSHA weighed the risks and concluded that the proposed work plan does not
justify the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine.
See Emergency Motion at Exh. A, p. 1.

In these circumstances, I cannot conclude that MSHA’s failure to modify the 103(k)
Order as requested by Contestant on December 6, 2001 was an abuse of discretion. 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 conclusions at the hearing that in its expert view, 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, at present, MSHA opined that the most appropriate support pattern
is 8 ft. bolts with mesh. As MSHA represented, this bolt length is set forth in the ground control
plan. See Sec. Ex. 5 at p. 3, C. 4. In any event, even if Pattison’s rock mechanics consultant
never endorsed this approach, such argument does not undercut MSHA’s expert view under its
broad 103(k) authority, that such approach is needed going forward.

MSHA further asserted a reasonable belief that the proposed activities, as described, were
“research oriented, ” as two PhD students were to accompany the experts. See Emergency
Motion at Exh. A, p. 3, December 2 e-mail from Pattison to Richetta. In addition, MSHA
informed Pattison that Ground Movement Monitors are not an acceptable replacement for roof
support in the Pattison Mine, and 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. MSHA opined that enough data must be collected so that the conclusions
are statistically valid, and that no such data has been collected at Pattison to its knowledge, or
from any other sand mine. Since the only possible purpose of the proposed Univ. Missouri work
is to collect such data, MSHA concluded that it must be considered as research. Similarly,
MSHA concluded that 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 sum, MSHA rationally expressed its belief that the proposed work plan did not justify
the exposure of individuals to the hazards of the unsupported roof at the Pattison Mine. See
Emergency Motion at Exh. A, p. 1. Based on this record, I cannot conclude that MSHA’s failure
to modify the Order was an abuse of discretion.

ORDER

Based on the foregoing findings of fact and conclusions, Citation No. 8659952 is
VACATED. Section 103(k) Order No. 8659953, as written and modified, is AFFIRMED.
Contestant’s motion to dismiss, or for temporary relief under 105(b)(2) is DENIED.
Contestant’s Emergency Motion to Modify 103(k) Order is DENIED, and to the extent it can be
viewed as a request for temporary relief under section 105(b)(2) from MSHA’s failure to grant
the requested modification on December 7, 2011, it is also DENIED.

There is no interlocutory ruling to certify under Commission Rule 76.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution: (Electronic & Regular Mail)

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

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