Imerys Pigments, LLC (Commission decision, September 29, 2006)

Plain-English summary

An administrative law judge dismissed a citation against Imerys Pigments for a violation committed by an independent contractor's employee. The D.C. Circuit later held that the Secretary's decision to cite both an owner-operator and its contractor was unreviewable prosecutorial discretion. The Commission remanded that citation for reconsideration under the circuit ruling. It also directed the judge to reconsider increasing a separate proposed penalty from $305 to $800 and to explain the statutory penalty criteria supporting the amount. Chairman Michael F. Duffy joined the remand but wrote separately to dispute the circuit court's narrow view of the Commission's authority.

Decision snapshot

• Governing provisions discussed: 30 U.S.C. §§ 820(i), 823, and 876(b)(2)(G)
• Outcome: The dismissed owner-operator citation and the increased penalty for a separate citation were remanded for further consideration.
• Key point: Controlling circuit law barred review of the Secretary's charging choice, while any independently assessed penalty still required analysis of the Mine Act's penalty criteria.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 29, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

IMERYS PIGMENTS, LLC

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Docket No. SE 2005-236-M

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

BY: Jordan and Young, Commissioners:

On April 21, 2006, the Commission granted the petition for discretionary review filed by the Secretary of Labor in the above-captioned proceeding. The Secretary’s appeal was limited to the issue of the responsibility of the mine operator, Imerys Pigments, LLC (“Imerys”), for the violation committed by the employee of an independent contractor in Citation No. 6095226. The administrative law judge had dismissed the citation against Imerys, relying on the Commission’s decision in Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005). In addition, the Commission further directed review, on its own motion, on the issue of whether the administrative law judge adequately explained his action in increasing the proposed penalty for Citation No. 6095227.

The Court of Appeals for the D.C. Circuit has reversed the decision of the Commission in Twentymile Coal Co., holding that the Secretary’s decision to cite the owner-operator of a mine, as well as its independent contractor, is an exercise of her prosecutorial discretion that is unreviewable. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006).

(  Commissioner Young shares the Chairman’s concerns regarding the D.C. Circuit Court’s decision in Twentymile and agrees with the Chairman’s thoughtful analysis of the Mine Act in his concurrence. Regrettably, the Circuit Court has consistently maintained a different view of this Commission and has repeatedly applied Martin v. OSHRC, 499 U.S. 144 (1991), to cases arising under the Mine Act, in spite of the differences the Chairman has noted in the respective organic statutes and the “available indicia of legislative intent,” Martin, 499 U.S. at 157, reflecting Congress’ will to empower the Commission to provide meaningful review of all issues brought before it. Commissioner Young nevertheless declines to join the Chairman’s concurring opinion because the Twentymile decision is in accord with precedent in the D.C. Circuit and the principle of stare decisis controls our decision in the instant case.)

In light
of the court’s decision, we remand the case to the judge for reconsideration of his dismissal of Citation No. 6095226. The judge shall also further consider on remand his increase in the proposed penalty of $305 to $800, for Citation 6095227, analyzing the penalty criteria in section 110(i), 30 U.S.C. § 810(i), consistent with the Commission’s decision in Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Chairman Duffy, concurring:

I join with my colleagues in remanding this matter to the judge for further proceedings consistent with the Court’s decision in Secretary of Labor v. Twentymile Coal Co. and Federal Mine Safety and Health Review Commission, 456 F.3d 151 (D.C. Cir. 2006). The judge should also reconsider his assessment of a penalty in excess of the Secretary’s recommendation.

Nevertheless, I respectfully take issue with several of the Court’s assumptions used to support its view that, under the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (“Mine Act”), this Review Commission lacks “authority to determine policy issues,” 456 F.3d at 160, and “is not as a general matter authorized to review the Secretary’s exercise of prosecutorial discretion.” Id. at 161.

Indeed, the Court appears to have expansively addressed issues that were not before it.

On the perennially disputed issue of whether a blameless mine owner-operator can be held liable for violations committed by its independent contractor, the Court could simply have cited the relevant precedents, found the Commission’s reasoning in this case insufficient to overcome those precedents, and have been done with it. Instead, the Court has inappropriately applied the Supreme Court’s decision in Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144 (1991).

The D.C. Circuit, at first blush, correctly renders the view of the Supreme Court in Martin:

Martin involved review under the Occupational Safety and Health Act (“OSH Act”), in which, like the Mine Act, “Congress separated enforcement and rulemaking powers from adjudicative powers, assigning these respective functions to two different administrative authorities.” Under the OSH Act, the former functions are assigned to the Secretary of Labor and the latter to the Occupational Safety and Health Review Commission (OSHRC); under the Mine Act, the former are again assigned to the Secretary of Labor and the latter to the Federal Mine Safety and Health Review Commission (FMSHRC). Under this “split enforcement” structure, the Court held, “enforcement of the Act is the sole responsibility of the Secretary.” Moreover, since “Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to use its adjudicatory power to play a policymaking role.”[

(  For reasons that will be made clear below, it is important to note that, in the quote from Martin, the only “Commission” to which the Supreme Court is referring is the Occupational Safety and Health Review Commission (“OSHRC”), not this Commission.)

]

456 F.3d. at 160-61 (citations omitted).

The D.C. Circuit goes on to extrapolate from the Supreme Court’s decision in Martin a severe limitation on this Commission’s separate authority under the Mine Act:

We have previously, and repeatedly, applied Martin’s analysis to the Mine Act. We do so here as well. As is true under the OSH Act, “enforcement of the [Mine] Act is the sole responsibility of the Secretary,” and the Commission has no “policymaking role.” Instead, “Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context.” “Under this conception of adjudication, the Commission is authorized to review the Secretary’s interpretations only for consistency with the regulatory language and for reasonableness.” And, like a court, the Commission is not as a general matter authorized to review the Secretary’s exercise of prosecutorial discretion.

456 F.3d at 161 (citations omitted; alteration in original).

However, the Court ignores the fundamental caveat expressed by the Supreme Court in Martin, i.e., that its decision was limited strictly to the split enforcement structure adopted in the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“OSH Act”):

We emphasize the narrowness of our holding. We deal in this case only with the division of powers between the Secretary and the Commission under the OSH Act. We conclude from the available indicia of legislative intent that Congress did not intend to sever the power authoritatively to interpret OSH Act regulations from the Secretary’s power to promulgate and enforce them. Subject only to constitutional limits, Congress is free, of course, to divide these powers as it chooses, and we take no position on the division of enforcement and interpretive powers within other regulatory schemes that conform to the split-enforcement structure.

499 U.S. at 157-58 (emphases added).

Seven years after passage of the OSH Act, Congress did, indeed, divide the respective powers of the Secretary and this Commission, and it did so along lines far different from and

much clearer than those set forth in the earlier statute. A simple side-by-side comparison of the statutory provisions establishing the two Commissions is most instructive:

(  For the sake of brevity, non-germane, “housekeeping” sections dealing with such matters as location of offices, authority to hire or transfer administrative law judges, etc., have been deleted from the comparison. Certain provisions of section 12 of the OSH Act have been rearranged to coincide with their counterparts in the Mine Act.)

THE FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

Section 113. (a) The Federal Mine Safety
and Health Review Commission is hereby
established. The Commission shall consist
of five members, appointed by the President
by and with the advice and consent of the
Senate, from among persons who by reason
of training, education, or experience are
qualified to carry out the functions of the
Commission under this Act. The President
shall designate one of the members of the
Commission to serve as Chairman.

*          *          *

(c) The Commission is authorized to
delegate to any group of three or more
members any or all of the powers of the
Commission, except that two members shall
constitute a quorum of any group designated
pursuant to this paragraph.

*          *          *

(d)(1) An administrative law judge appointed
by the Commission to hear matters under
this Act shall hear, and make a determination
upon, any proceeding instituted before the
Commission and any motion in connection
therewith, assigned to such administrative
law judge by the chief administrative law
judge of the Commission or by the
Commission, and shall make a decision
which constitutes his final disposition of the
proceedings. The decision of the
administrative law judge of the Commission
shall become the final decision of the
Commission 40 days after its issuance unless
within such period of the Commission has
directed that such decision shall be reviewed
by the Commission in accordance with
paragraph (2). An administrative law judge
shall not be assigned to prepare a
recommended decision under this Act.

(d)(2) The Commission shall prescribe rules
of procedure for its review of the decisions
of administrative law judges in cases under
this Act which shall meet the following
standards for review:

(d)(2)(A)(i) Any person adversely affected
or aggrieved by a decision of an
administrative law judge, may file and serve
a petition for discretionary review by the
Commission of such decision within 30 days
after the issuance of such decision. Review
by the Commission shall not be a matter of
right but of the sound discretion of the
Commission.

(ii) Petitions for discretionary review shall
be filed only upon one or more of the
following grounds:

(I) A finding or conclusion of material
fact is not supported by substantial
evidence.

(II) A necessary legal conclusion is erroneous.

(III) The decision is contrary to law or to
the duly promulgated rules or decisions of
the Commission.

(IV) A substantial question of law, policy
or discretion is involved.

(V) A prejudicial error of procedure was
committed.

(iii) Each issue shall be separately numbered
and plainly and concisely stated, and shall be
supported by detailed citations to the record
when assignments of error are based on the
record, and by statutes, regulations, or
principal authorities relied upon. Except for
good cause shown, no assignment of error by
any party shall rely on any question of fact
or law upon which the administrative law
judge had not been afforded an opportunity
to pass. Review by the Commission shall be
granted only by affirmative vote of two of
the Commissioners present and voting. If
granted, review shall be limited to the
questions raised by the petition.

(B) At any time within 30 days after the
issuance of a decision of an administrative
law judge, the Commission may in its
discretion (by affirmative vote of two of the
Commissioners present and voting) order
the case before it for review but only upon
the ground that the decision may be
contrary to law or Commission policy, or
that a novel question of policy has been
presented. The Commission shall state in
such order the specific issue of law,
Commission policy, or novel question of
policy involved. If a party’s petition for
discretionary review has been granted, the
Commission shall not raise or consider
additional issues in such review proceedings
except in compliance with the requirements
of this paragraph.

(C) For the purpose of review by the
Commission under paragraph (A) or (B) of
this subsection, the record shall include: (i)
all matters constituting the record upon
which the decision of the administrative law
judge was based; (ii) the rulings upon
proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv)
the petition or petitions for discretionary
review, responses thereto, and the
Commission’s order for review; and (v)
briefs filed on review. No other material
shall be considered by the Commission upon
review. The Commission either may remand
the case to the administrative law judge for
further proceedings as it may direct or it may
affirm, set aside, or modify the decision or
order of the administrative law judge in
conformity with the record. If the
Commission determines that further
evidence is necessary on an issue of fact it
shall remand the case for further proceedings
before the administrative law judge.

(The provisions of section 557(b) of title 5,
United States Code, with regard to the
review authority of the Commission are
hereby expressly superseded to the extent
that they are inconsistent with the provisions
of subparagraphs (A), (B), and (C) of this
paragraph.)

(e) In connection with hearings before the
Commission or its administrative law judges
under this Act, the Commission and its
administrative law judges may compel the
attendance and testimony of witnesses and
the production of books, papers, or
documents, or objects, and order testimony
to be taken by deposition at any stage of the
proceedings before them. Any person may
be compelled to appear and depose and
produce similar documentary or physical
evidence, in the same manner as witnesses
may be compelled to appear and produce
evidence before the Commission and its
administrative law judges. Witnesses shall
be paid the same fees and mileage that are
paid witnesses in the courts of the United
States and at depositions ordered by such
courts. In case of contumacy, failure, or
refusal of any person to obey a subpoena or
order of the Commission or an
administrative law judge, respectively, to
appear, to testify, or to produce documentary
or physical evidence, any district court of the
United States or the United States courts of
any territory or possession, within the
jurisdiction of which such person is found, or
resides, or transacts business, shall, upon the
application of the Commission, or the
administrative law judge, respectively, have
jurisdiction to issue to such person an order
requiring such person to appear, to testify, or
to produce evidence as ordered by the
Commission or the administrative law judge,
respectively, and any failure to obey such
order of the court may be punished by the
court as a contempt thereof.

30 U.S.C. § 823 (emphases added).

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

Section 12. (a) Establishment; membership;
appointment; Chairman

The Occupational Safety and Health Review
Commission is hereby established. The
Commission shall be composed of three
members who shall be appointed by the
President, by and with the advice and
consent of the Senate, from among persons
who by reason of training, education, or
experience are qualified to carry out the
functions of the Commission under this
chapter. The President shall designate one of
the members of the Commission to serve as
Chairman.

*          *          *

(f) Quorum; official action

For the purpose of carrying out its functions
under this chapter, two members of the
Commission shall constitute a quorum and
official action can be taken only on the
affirmative vote of at least two members.

*          *          *

(j) Administrative law judges;
determinations; report as final order of
Commission

An administrative law judge appointed by
the Commission shall hear, and make a
determination upon, any proceeding
instituted before the Commission and any
motion in connection therewith, assigned to
such administrative law judge by the
Chairman of the Commission, and shall
make a report of any such determination
which constitutes his final disposition of the
proceedings. The report of the
administrative law judge shall become the
final order of the Commission within thirty
days after such report by the administrative
law judge, unless within such period any
Commission member has directed that such
report shall be reviewed by the Commission.

*          *          *

(g) Hearings and records open to public;
promulgation of rules; applicability of
Federal Rules of Civil Procedure

Every official act of the Commission shall be
entered of record, and its hearings and
records shall be open to the public. The
Commission is authorized to make such rules
as are necessary for the orderly transaction
of its proceedings. Unless the Commission
has adopted a different rule, its proceedings
shall be in accordance with the Federal Rules
of Civil Procedure.

*          *          *

[No comparable provision]

[No comparable provision]

(h) Depositions and production of
documentary evidence; fees

The Commission may order testimony to be
taken by deposition in any proceeding
pending before it at any state of such
proceeding. Any person may be compelled
to appear and depose, and to produce books,
papers, or documents, in the same manner as
witnesses may be compelled to appear and
testify and produce like documentary
evidence before the Commission. Witnesses
whose depositions are taken under this
subsection, and the persons taking such
depositions, shall be entitled to the same fees
as are paid for like services in the courts of
the United States.

(i) Investigatory powers

For the purpose of any proceeding before the
Commission, the provisions of section 161
of this title are hereby made applicable to the
jurisdiction and powers of the Commission.

29 U.S.C. § 661.

Quoting its prior decision in Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 464 (D.C. Cir. 1994), the D.C. Circuit iterates in Twentymile that section 113 of the Mine Act, 30 U.S.C. § 823, “merely states” the grounds upon which a “petitioner may call upon the Commission’s power of discretionary review over a decision of an administrative law judge.” 456 F.3d at 160. To which petitioner is the court referring? If the Secretary loses on a matter of law, policy or discretion before the administrative law judge, by the court’s logic she can appeal to the Commission, which is then bound to vindicate her position. If the Secretary wins on a matter of law, policy or discretion before the administrative law judge, and the mine operator appeals, the Commission is, by the court’s logic, likewise bound to vindicate the Secretary’s position. Thus, the court’s opinion can be read as having the Commission engage in a kind of adjudicative bait-and-switch whereby mine operators are encouraged to appeal matters of law, policy or discretion even though the Commission is powerless to do anything but side with the Secretary. Under such a reading of the opinion, there is little or no difference between the D.C. Circuit’s concept of the split enforcement structure under the Mine Act and the unitary structure of mine safety and health enforcement and adjudication established within the Department of the Interior under the Mine Act’s predecessor statutes.

(  The D.C. Circuit’s position also conflicts with the Senate Committee on Human Resources’ view that “an independent Commission is essential to provide administrative adjudication which preserves due process and instills much more confidence in the program.” S. Rep. No. 95-181 at 47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 635 (1978).)

Contrary to the D.C. Circuit’s apparent position, the language of section 113 cannot be read to limit the scope of this Commission’s oversight to the judge’s decision — a sort of in-house quality control function. Section 113(d)(2)(A)(ii), which states that parties may petition for review of administrative law judge decisions, does indeed provide for Commission oversight of an administrative law judge if his decision is “contrary to law, or to the duly promulgated rules or decisions of the Commission.” 30 U.S.C. § 823(d)(2)(A)(ii). But, significantly, the subsection also goes on to establish that the Commission is authorized to grant a petition when “[a] substantial question of law, policy or discretion is involved.” Id. It is particularly noteworthy that there are no statutory limitations on the types of “law, policy or discretion” questions that the Commission is authorized to review in granting parties’ petitions. This strongly indicates that Congress intended for the Commission to have broad interpretive and policy-making powers. The D.C. Circuit simply does not directly address the significance of this specific language chosen by Congress. Instead, it glosses over the language in its effort to fit the Mine Act scheme within the split-enforcement mold created for the OSH Act under the Martin decision.

The error in the D.C. Circuit’s reasoning is made even more apparent by the language in section 113(d)(2)(B) of the Act, which addresses the Commission’s authority to grant review of administrative law judge decisions sua sponte. That provision authorizes the Commission to grant review sua sponte only if “the decision may be contrary to law or Commission policy, or that a novel question of policy has been presented.” 30 U.S.C. § 823(d)(2)(B). If the Commission is confined to reviewing only its own internal policies, why is “policy” used twice in the same sentence — once in connection with the Commission and then, again, without qualification? The only reasonable answer is that Congress intended that the Commission be authorized not only to review decisions where established “Commission policy” is being contravened but also decisions involving novel, general policy questions under the Mine Act itself.

(  The very same distinction between “Commission policy” and “policy” in general is contained in the next sentence of section 113(d)(2)(B): “The Commission shall state in such order the specific issue of law, Commission policy, or novel question of policy involved.”)

Otherwise, one must assume that Congress was unable to choose the correct words to describe the Commission’s review authority and limit it to purely internal policy matters. Section 113(d)(2)(B) unmistakably demonstrates that Congress intended for the Commission to have a substantial policy-making role under the Mine Act.

Aside from the obviously expanded role of this Commission evident in the enabling provisions of the Mine Act as compared to those of the OSH Act, the legislative history of the Mine Act underscores the conclusion that Congress intended this Commission to have a significant policy-making function:

One of the essential reforms of the mine safety program is the creation of an independent Federal Mine Safety and Health Review Commission charged with the responsibility of assessing civil penalties for violations of safety or health standards, for reviewing the enforcement activities of the Secretary of Labor, and for protecting miners against unlawful discrimination.

It is our hope that in fulfilling its responsibilities under the Act, the Commission will provide just and expeditious resolution of disputes, and will develop a uniform and comprehensive interpretation of the law. Such actions will provide guidance to the Secretary in enforcing the [A]ct and to the mining industry and miners in appreciating their responsibilities under the law. When the Secretary and mine operators understand precisely what the law expects of them, they can do what is necessary to protect our Nation’s miners and to improve productivity in a safe and healthful working environment.

Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Comm’n Before the Senate Comm. on Human Res., 95th Cong., 1 (1978).

The above statement by Senator Williams, Chairman of the Human Resources Committee, carries considerable weight with respect to the Commission’s policy role under the Mine Act. Senator Williams was the Mine Act’s principal author. Senator Williams’ statement that the Commission is to “develop a uniform and comprehensive interpretation of the law,” “provide guidance to the Secretary in enforcing the [Act],” and ensure that “the Secretary and mine operators understand precisely what the law expects of them” strongly indicates that the Commission is to play a significant interpretive and policy-making role.

Quite importantly, Senator Williams’ statement also carried considerable weight with the Supreme Court. In Thunder Basin Coal Co. v Reich, 510 U.S. 200 (1994), decided three years after Martin, the Supreme Court, citing with approval Senator Williams’ statement, held that a mine operator could not circumvent the adjudicative procedures set forth in the Mine Act by seeking a pre-enforcement injunction against MSHA in a case involving whether non-employee union organizers could represent employees in a non-union mine for purposes of asserting rights under the Mine Act. The Supreme Court rejected the operator’s attempt at injunctive relief by emphasizing strongly that the Commission, as an independent review body, could and should decide the merits of the case:

Petitioner’s statutory claims at root require interpretation of the parties’ rights and duties under § 813(f) and 30 CFR pt. 40, and as such arise under the Mine Act and fall squarely within the Commission’s expertise. The Commission, which was established as an independent-review body to “develop a uniform and comprehensive interpretation” of the Mine Act, Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978), has extensive experience interpreting the walk-around rights and recently addressed the precise NLRA claims presented here. Although the Commission has no particular expertise in construing statutes other than the Mine Act, we conclude that exclusive review before the Commission is appropriate since “agency expertise [could] be brought to bear on” the statutory questions presented here.

As for petitioner’s constitutional claim, we agree that “[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” This rule is not mandatory, however, and is perhaps of less consequence where, as here, the reviewing body is not the agency itself but an independent commission established exclusively to adjudicate Mine Act disputes. The Commission has addressed constitutional questions in previous enforcement proceedings.

Id. at 214-15 (footnotes and citations omitted; emphasis added.)

Thus, contrary to the D.C. Circuit’s version of Mine Act history, the Supreme Court has had occasion to opine specifically on the “division of enforcement” model adopted by Congress in the Mine Act. The Supreme court emphasized the Commission’s duty to “develop a uniform and comprehensive interpretation” of the Mine Act and the “agency expertise” of the Commission in interpreting the Mine Act. The contrast between the Supreme Court’s characterization of the relationship between MSHA and this Commission on the one hand, and OSHA and OSHRC on the other, is compelling.

The D.C. Circuit’s contention that the Commission is not authorized to review the Secretary’s exercise of her prosecutorial discretion is further belied by section 105(c) of the Mine Act, 30 U.S.C. § 815(c). There, Congress authorizes the Commission to entertain discrimination complaints brought by miners when the Secretary has declined to do so. Under section 105(c), a miner is allowed to file a discrimination complaint if he believes an operator has retaliated against him for the exercise of his safety rights under the Act. The miner first files the complaint with the Secretary who, upon finding discriminatory conduct, files a complaint for relief with the Commission. If, however, on preliminary investigation, the Secretary determines that no discriminatory practice has occurred, the miner retains the right to bring a complaint on his own behalf before the Commission. If the Commission concludes that the complaint is meritorious, it can order appropriate remedies, including directing the Secretary to propose a civil penalty.

Section 105(c) demonstrates clearly the Congressional intent that the Commission is authorized to second guess the enforcement choices made by the Secretary. No such authority resides with OSHRC under the OSH Act, underscoring the view that Congress overtly intended to expand the policy-making and discretionary powers of FMSHRC beyond those granted to OSHRC under the OSH Act.

Moreover, Congress recently confirmed the interpretive and policy-making role of the Commission in the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”), Pub. L. No. 109-236, 120 Stat. 493 (June 15, 2006), which amended the Mine Act in certain key respects. Section 2 of the MINER Act amends section 316 of the Mine Act, 30 U.S.C.
§ 876, by adding a new section (b), entitled “Accident Preparedness and Response.” Section 316(b)(2)(G), which is entitled “Plan Dispute Resolution,” provides for Commission review of disputes involving accident response plans, which are to be submitted by operators for approval by the Secretary. The provision gives the Commission broad authority to resolve “[a]ny dispute between the Secretary and an operator with respect to the content of the operator’s plan or any refusal by the Secretary to approve such a plan . . . .” 120 Stat. at 496. Because such disputes will ordinarily involve issues of legal interpretation and issues of policy regarding how such disputes should be resolved and what plan contents are acceptable, Congress clearly intended that the Commission should exercise a significant degree of independent interpretive and policy-making authority to resolve such disputes. Otherwise, there would be no reason to provide for Commission review. In the absence of a significant interpretive and policy-making role for the Commission, the Secretary could adopt a particular policy with regard to the contents of mine plans, and the Commission would be bound to uphold the Secretary’s policy in every instance. Certainly, Congress did not intend that the “plan dispute resolution” process would become a meaningless exercise in which the Commission essentially rubber-stamps the Secretary’s policy judgments in each case.

By ignoring the unequivocal caveat expressed by the Supreme Court that its holding in Martin should not be applied in the Mine Act context, the D.C. Circuit hears its own “sounds in the [self-imposed] silence” of the Supreme Court. 456 F.3d at 158. Moreover, the D.C. Circuit ignores the obvious expansion of authority granted to this Commission by Congress in the Mine Act well beyond that granted OSHRC under the OSH Act. Section 113 of the Mine Act allocates resolution of matters of law, policy and discretion to the Review Commission in keeping with the view of Senator Williams, quoted above, and as applied by the Supreme Court in Thunder Basin.

Michael F. Duffy, Chairman

Distribution

Jack Powasnick, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Craig S. Stickley

Imery Pigments, LLC.

P.O. Box 330

849 Fayetteville Road

Sylacauga, AL 35150

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20001-2021