United Steel Workers Local No. 5114, on behalf of Miners v. Hecla Limited

Plain-English summary

Hecla failed to take stress-gauge readings required by a section 103(k) order modification before a December 14, 2011 rockburst at the Lucky Friday Mine. Judge Richard W. Manning held that fourth-sentence section 111 compensation applied only to miners who worked in the affected area while that specific monitoring requirement was violated, beginning December 6 and ending when a new withdrawal order removed miners after the rockburst. He rejected the union's request to extend compensation through June 2013, when the broader orders were terminated, because later mine closures and unrelated remediation lacked the required causal connection. The judge retained jurisdiction for the parties to identify the miners and calculate double compensation plus interest. The later award to 19 miners was affirmed by the Commission.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(k) and 821
• Outcome: Hecla received partial summary decision limiting compensation to qualifying miners and the December 6 through December 14, 2011 noncompliance period; the union's broader motion was denied.
• Subsequent review: The Commission affirmed the resulting compensation award in west-2012-466-cm-commission.
• Key point: Fourth-sentence section 111 compensation requires a nexus to the specific violated withdrawal-order term and ends when miners are withdrawn from the affected work, not whenever a broader order is later terminated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-3577
/ FAX: 303-844-5268

December 23,
2014

UNITED
STEELWORKERS LOCAL NO. 5114, ON BEHALF OF MINERS,

Applicant

v.

HECLA
LIMITED,

Respondent

COMPENSATION
PROCEEDING

Docket
No. WEST 2012-466-CM

Lucky
Friday Mine

Mine
ID 10-00088

ORDER GRANTING,
IN PART, HECLA’S MOTION

FOR PARTIAL
SUMMARY DECISION

Appearances:               Susan
J. Eckert, Esq., Santarella
& Eckert, LLC, Littleton, Colorado, for Petitioner;

Laura
Beverage, Esq., and Karen Johnston, Esq., Jackson Kelly PLLC, Denver, Colorado,
for Respondent

Before:                                    Judge
Manning

This Compensation Proceeding is
before me pursuant to section 111 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (the “Act”), upon an application for compensation
filed by the United Steel Workers, Local 5114 (“USW”) on behalf of miners,
against Hecla Limited. On November 14, 2014 Hecla and USW filed simultaneous motions
for partial summary decision in this matter. On October 29, 2014, I issued a
decision concerning the contest of the withdrawal orders related to this
matter, WEST 2012-353-RM and WEST 2012-354-RM. Hecla Limited, 36 FMSHRC
__, slip op., 2014 WL 5811359 (Oct. 2014). With the parties’ agreement, the
record from that hearing is hereby incorporated by reference in this proceeding.[1]

I.                  
BACKGROUND

On November 16, 2011, a fall of ground
occurred in the Lucky Friday Mine. At 2:25 a.m. that same day, MSHA issued
Order No. 8605614 pursuant to section 103(j) of the Act. The order identified
the affected area as the “54 Ramp from the 5700 intersection from the spray
chamber cut out to the down ramp of the old day box cut out and the 5900 main
haulage from 100 feet from the intersection of the lateral on the 5900 level to
30 feet before the chevron.” Ex. G-1 at 1-2. At 1:05 p.m., MSHA issued modification
No. 8605614-01, modifying Order No.

8605614
to a section 103(k)[2]
order that allowed miners to begin repairs of the affected area, excluding the
54 ramp area.[3]

On November 20, 2011, MSHA issued
modification No. 8605614-03 to permit the installation of three stress gauges in
the 5900 main haulage drift.[4]
The 5900 haulage drift was the primary access to the active mining area of the Mine
at this time. The Lucky Friday Mine is a deep mine; the 5900 level is 5900 feet
below the surface. The stress gauges were intended to monitor changes in
pressure that could lead to a fall of ground. Modification No. 8605614-05[5]
required Hecla to monitor the stress gauges on a shift to shift basis.[6]

MSHA approved Hecla’s proposal to
install a steel liner (culvert) in the affected area of the 5900 haulage drift.
The steel liner was intended to protect miners in that area from any fall of
ground. On December 14, 2011, at approximately 7:40 p.m., a rockburst occurred
in the 5900 pillar, injuring seven miners working to install the steel liner. MSHA
issued Order No. 8605622,[7]
a section 103(j) order that removed all miners working in the 5900 main haulage.
Order No. 8605622 encompassed all underground areas of the mine including the
area affected by Order No. 8065614. On December 15, 2011, MSHA issued modification
No. 8605622-01, modifying Order No. 8605622 to a section 103(k) order that required
the operator to obtain prior approval for all actions taken to recover and
restore operations anywhere in the Mine.[8]

On December 21, 2011, MSHA issued
Citation No. 8565565 alleging that Hecla worked in the face of Order No.
8605614 by failing to perform the stress gauge reading directly before the
rockburst as required by Order No. 8605614-05. Hecla contested this citation,
but the parties reached a settlement of Citation No. 8565565, which the court
approved.

In the ensuing months, MSHA conducted
several regular inspections as well as an impact inspection because the mine
had previously suffered multiple groundfalls. MSHA maintained the two 103(k)
orders and also issued numerous citations and orders during these inspections. MSHA
did not lift the 103(k) orders until Hecla abated all the cited conditions. Many
of these enforcement actions concerned ground support issues, but several were
unrelated. One violation required Hecla to clean down the entire Silver Shaft
to remove concrete debris from the sides of the shaft. This took over 14 months
to complete and left the entire Mine with no power, no water, and no compressed
air. This citation and other citations contributed to Order Nos. 8605614 and
8605622 remaining open for an uncommonly long period of time.

On April 2, 2013, MSHA issued modification
No. 8605622-13 to allow the operator to construct sand walls on the North and
South sides of the rockburst area in the 5900 main haulage drift and subsequently
backfill the area. A barricade was moved pursuant to modification No.
8605622-13. On June 12, 2013, Stembridge issued modification Nos. 8605614-07
and 8605622-14, terminating Order Nos. 8605614 and 8605622.

On January 31, 2012, the USW filed this
claim for compensation under section 111.

II.  DISCUSSION

The entire record shows that there is no
genuine issue of material fact and Hecla is entitled, in part, to partial summary
decision as a matter of law. For the reasons set forth below, I GRANT,
in part, Hecla Limited’s Motion for Partial Summary Decision.[9]
I retain jurisdiction of this case until the parties agree to a specific dollar
amount that will be awarded as compensation to the miners.

Section 111 mandates that operators pay
wages to miners idled by section 103, 104, and 107 orders issued by MSHA. The
four sentences of section 111 create a “graduated
scheme of increasing compensation commensurate with increasingly serious
operator conduct.” Local Union 1261, District 22 United Mine Workers of America
v. Consolidation Coal Co., 11 FMSHRC 1609, 1613 (Sept. 1989). The fourth sentence
of section 111 addresses the most culpable operator
conduct, the failure to comply with a withdrawal order:

Whenever an operator violates or fails
or refuses to comply with any order issued under section 103, section 104, or
section 107 of this Act, all miners employed at the affected mine who would
have been withdrawn from, or prevented from entering, such mine or area thereof
as a result of such order shall be entitled to full compensation by the
operator at their regular rates of pay, in addition to pay received for work
performed after such order was issued, for the period beginning when such order
was issued and ending when such order is complied with, vacated, or terminated.

30
U.S.C. § 821. Each of the four sentences in section 111 allows for greater
miner compensation than the previous sentence; this escalation is based upon
“what the operator has done[.]” Local Union 1889,
District 17, United Mine Workers of America v. Westmoreland Coal Co., 8
FMSHRC 1317, 1327 (Sept. 1986). Application of the fourth sentence of section
111 is an issue of first impression.

The compensation provided by section 111
is, first and foremost, intended to protect miner safety; it encourages miners
to report withdrawal-worthy dangers without fear of losing wages as a result. See
Rushton Mining Co. v. Morton, 520 F.2d 716, 720 (3rd Cir. 1975). Although
the culpability of the operator influences the compensation available to
miners, the senate did not intend for compensation to be punitive. S. Rep. No.
95-181, 95th Cong., 1st Sess. 46-47 (1977), reprinted in Legislative History
of Federal Mine Safety and Health Act of 1977, at 634-635 (1978). The Commission has found a nexus requirement in section
111, stating that “we will examine the relationship between the underlying
reasons for the withdrawal and for the order, and will give balanced
consideration both to the limited and purely compensatory character of section
111 and to the overall safety purposes of the 1977 Mine Act and section 111 itself.”
Local Union No. 781, District 17, United Mine Workers of America v. Eastern
Associated coal corp., 3 FMSHRC 1175, 1178 (May 1981).  

I find that the fourth sentence of
section 111 applies to Order No. 8605614-05 because Hecla violated this order
as set forth in Citation No. 8565565.[10]
Hecla failed to monitor the stress gauges directly before the rockburst. The
nexus between the underlying events and the withdrawal order that an award of
section 111 compensation requires exists between Citation No. 8565565 and amendment
05 of Order No. 8605614. The issuance of Citation No. 8565565 for Hecla’s
failure to check pressure gauges as mandated by Order No. 8605614-05 is the
violation of a withdrawal order that fourth sentence compensation requires. Order
No. 8605614, issued on 11/16/2011, withdrew miners and mandated that only
people authorized by MSHA could enter the affected area. Ex. G-1 at 2. Order
No. 8605614 did not include the requirement to check stress gauges because the
stress gauges at issue were not installed at that time. On 12/06/2011, Order
No. 8605614-05 allowed limited travel in the 5900 haulage area based upon
Hecla’s agreement to “conduct two daily surveys at the start and end of the 1st
shift to determine whether movement is occurring[.]” Ex. G-1 at 7. A nexus
exists between the triggering event, Citation No. 8565565, and the specific
amendment 05 of Order No. 8605614 because MSHA issued Citation No. 8565565 for
Hecla’s failure to monitor stress gauges, which Order No. 8605614-05 required. The
nexus between the triggering event and the initial issuance of Order No.
8605614 and its other amendments is weaker and extending the compensation
period to those amendments would not make miners safer; the miners who were in
the 5900 area at the time of the rockburst were permitted in the area under amendment
05 of Order No. 8605614.[11]
Giving balanced consideration to the limited and
purely compensatory character of section 111 and the overall safety purposes of
the Act, I find that the miners represented by USW are entitled to compensation
under the fourth sentence of section 111 beginning on December 6, 2011 at 15:16
(3:16 p.m. local time).

I find that miner compensation should
end at 21:00 (9:00 p.m. local time) on December 14, 2011 when MSHA issued Order
No. 8605622 because Hecla complied with Order No. 8605614-05 for the purposes
of section 111 at that time.[12]
A section 103 order is usually issued as soon as MSHA is aware of an accident to
quickly remove miners from the potentially dangerous mine and to give MSHA
control of the mine to initiate an investigation. See Miller Min.
Co., Inc. v. Federal Mine Safety and Health Review Com'n, 713 F.2d 487, 490 (9th
Cir. 1983). Congress drafted sentence four of section 111
to compensate miners “who would have been withdrawn from, or prevented from
entering” a mine where MSHA forbid access. Although it applies in other
situations, such as the current case, sentence four of section 111 generally
applies to situations where MSHA issues a withdrawal order and the operator fails
to withdraw miners, or allows miners to enter the mine in violation of a
withdrawal order. For most section 103 orders, the only action required of an
operator in those situations is to remove miners from the mine; when a mine
does so, they comply with the affirmative requirements of most section 103
orders.[13]
 In the situation before me, however, the operator violated a modification to a
103(k) order and not the original order or the basic withdrawal requirement.

Order No. 8605614-05 included the
affirmative requirement that Hecla must monitor stress gauges to continue work
in the affected area; once Order No. 8605622 forbade work in the 5900 haulage
area, however, that requirement was complied with for the purposes of sentence
four, section 111 compensation.[14]
The order required the monitoring of gauges due to the presence of miners in
the area; once the miners were withdrawn and work in the area was forbidden,
that requirement fell away. For this reason, both Inspectors Brad Breland, a
supervisory mine inspector, and Kevin Hirsch, the assistant district manager at
the time of the accident, testified that Order No. 8605622 superseded Hecla’s
requirement to monitor the stress gauges. Not only was the monitoring no longer
required after the issuance of Order No. 8605622, [15]
but Inspector Breland testified that to believe so was “silly[.]” (Tr. 108).

The fourth sentence of section 111
applies in this case because Hecla violated Order No. 8605614-05 by failing to
monitor pressure gauges. Hecla’s culpability in this compensation case relates
to that action and requirement, a requirement that MSHA admits Order No.
8605622 superseded. The extended closure of the mine after the issuance of
Order No. 8605622 focused upon myriad issues, most of which were unrelated to
the 5900 area and none of which addressed monitoring the stress gauges at
issue.[16]
Section 111 focuses upon the culpability of mine operators relating to specific
actions concerning withdrawal orders. Local Union
1889, 8 FMSHRC at 1327. Although
Hecla was responsible for all the violations that MSHA required Hecla to abate
before the termination of Order No. 8605622, the remediation of those
violations did not address Citation No. 8565565, which is the action that
sentence four of section 111 compensation hinges upon. When MSHA issued Order
No. 8605622 it “superseded” the requirement of Order No. 8605614-05 to monitor
the stress gauges, which meant Hecla was then in compliance with Order No.
8605614-05 and sentence four, section 111 compensation ceased.[17]

The fourth sentence of section 111
contemplates a situation where an operator fails to withdraw miners. The case
before me involves the violation of a 103(k) order, but not due to a failure to
withdraw miners. The compensation period therefore does not begin at the time
of the initial order of withdrawal, but rather when MSHA required Hecla to
begin monitoring the stress gauges. After the violation of the withdrawal
order, the unusual sequence of events obscures the end of the compensation
period; the limited nature of section 111 warrants the compensation period to
end when the operator could no longer comply with the specific requirement of
the withdrawal order at issue.

I find that only miners who worked in
the area controlled by Order No. 8605614-05 from the time the stress reading
was not taken until the time that miners were withdrawn as a result of the rock
burst in the pillar are entitled to compensation. Sentence four of Section 111 only
mandates compensation for miners “who would have been withdrawn from, or
prevented from entering” the mine. 30 U.S.C. § 821. Section 111 uses the phrase
“who would have been” because it addresses only those miners who worked in the
face of a withdrawal order. The issuance of Order No. 8605614 on November 16,
2011 idled many miners, but they would not have been withdrawn from the area restricted
by Order No. 8605614-05 on December 15 because they were not there to be
withdrawn. The plain language of section 111 dictates that only miners who
worked in the face of Order No. 8605614-05 are entitled to compensation; miners
who worked in the 5900 haulage drift, the 54 ramp, or the 5700 level after
Hecla failed to monitor the stress gauges are therefore entitled to
compensation.

The entire record shows that there is no
genuine issue of material fact and Hecla is entitled, in part, to partial summary
decision as a matter of law as set forth above. Miners who worked in the 5900
haulage area, the 54 ramp, or the 5700 level during the time between Hecla’s
failure to check the stress gauges and the December 14, 2011 rockburst are
entitled to compensation under sentence four of section 111. The compensation
period begins on December 6, 2011 at 15:16 and ends
on December 14, 2011 at 21:00.[18]
I GRANT, in part, Hecla’s Motion for Partial Summary Decision. Although
I hold that select miners are entitled to compensation under the fourth
sentence of section 111 of the Mine Act, I DENY the USW’s motion for Motion
for Partial Summary Decision as set forth in this order. I ORDER the
parties to agree to the specific miners due compensation and the amount of that
compensation; until I approve that submission, I retain jurisdiction of this
matter.

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Laura
E. Beverage, Esq.,
and Karen Johnston, Jackson Kelly PLLC, 1099 18th St., Suite 2150,
Denver, CO 80202 (Certified Mail)

Susan
J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO
80125 (Certified Mail)

[1] I will
reference Respondent’s exhibits from the July 29-30, 2014 hearing as “Ex. R-X” and
the Secretary’s exhibits from that hearing as “Ex. G-X.” References to that
transcript shall be “Tr.”

[2] Section 103(k)
of the act states:

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.

30
U.S.C. § 813(k).

[3] On November 17,
2011, MSHA also issued modification No. 8605614-02 to allow Hecla to scale,
bolt, and repair through the fall at the 5900 haulage way and the 5700 sublevel
of the 54 ramp.

[4] On December 2,
2011, MSHA issued modification No. 8605614-04 to allow the mine to restore
utilities through the 5900 drift where the fall occurred.

[5] Originally,
Modification No. 8605614-05 was issued as a second Modification No. 8605614-03.
MSHA issued Modification No. 8605614-06 to redress this problem.

[6] Modification
No. 8605614-05 states, in pertinent part:

This modification is to allow limited
travel through the affected area of the 5900 main haulage and of the 54 ramp at
the 5700 level.

This modification is based upon no
movement of the affected area has occurred since monitoring began (about four
days) after shotcrete and bolting following the mine’s level three bolting plan
were followed. Stress monitors indicate the area is d[i]stressed as compared to
other active areas of the mine.

This action is to allow very limited
activities utilizing the 5900 main haulage based upon the temporary repairs
already conducted by the mine until the engineered culvert arrives and more
permanent repairs are made.

Upon arrival of the culvert from the
manufacturer, the mine will stop work to install the culvert and only those
miners working on the culvert will travel in the affected area.

This modification is based upon the mine
will conduct two daily surveys at the start and end of the 1st shift to
determine whether movement is occurring at the survey stations of the 5900 main
haulage near the chevron.

This modification is based upon no foot
travel will occur in the affected area and that each mobile equipment operator
will conduct a visual inspection of the affected area before travel occurs.

This modification is based upon the mine
has developed a written plan to address any cracking or closure of the main
haulage, and that the mine will stop travel in the affected area should
detectable movement, distortion, cracking or damage occur….

Any significant changes will be reported
to MSHA to include additional stressing, closure, cracking or squeeze and
deformity.

This modification allows approximately 3
trucks per shift to make 10 rounds each per shift. It allows
mechanics/electricians to travel through the area if required to repair
equipment. It allows only miners necessary to conduct normal mining activities
to travel through the area.

Ex. G-1 at 1-2.

[7] Order No.
8605622 mandates:

An accident occurred at this operation
on 12/14/2011 at approximately 19:40 pacific standard time. As rescue and
recover work is necessary this order is being issued under 103j of the Federal
Mine Safety and Health Act of 1977 to assure the safety of all persons at this
operation. This order is being issued to prevent the destruction of any
evidence which would assist in investigating the cause or causes of the
accident. It prohibits all activity in all underground areas of the mine except
to the extent necessary to rescue an individual or prevent or eliminate an
imminent danger until MSHA has determined it is safe to resume normal mining
operations underground. This order applies to all persons engaged in the rescue
and recovery operation and any other persons on site. This order was initially
issued orally to the miner operator at 21:00 pacific standard time (the local
time at the mine) and has now been reduced to writing.

Ex.
G-8 at 25

[8] MSHA issued a
total of 14 modifications to Order No. 8605622. On August 9, 2012, MSHA issued
modification No. 8605622-10 to allow the operator to drive a bypass around the
5900 main haulage drift.

[9] Commission
Procedural Rule 67 sets forth the grounds for granting summary decision as
follows:

A motion for summary decision shall be
granted only if the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to
any material fact; and

(2) That the moving party is entitled to
summary decision as a matter of law.

29
C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision
is an extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414,
1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981)). The Commission has also analogized Commission Procedural Rule 67 to
Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007); See Also Energy West Mining Co., 16 FMSHRC at
1419 (citing Celotex Corp v. Cartrett, 477 U.S. 317,237 (1986)).

When the Commission reviews a summary
decision under Comm. P. R. 67, it looks “‘at the record on summary judgment in
the light most favorable to … the party opposing the motion,’ and that ‘the
inferences to be drawn from the underlying facts contained in [the] materials
[supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473
(1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

[10] Citation No.
8565565 states:

The mine operator worked in the face of
103(k) order 8605614, this order was issued by MSHA on November 16, 2011. This
order was issued to insure the safety of miners at the mine after a violent
rock burst occurred and was subsequently modified to insure a safe means to
repair the damaged area. Subsequent action number 8605614-[05] states that the
mine operator will conduct daily surveys at the start and end of the first
shift to determine [whether] movement is occurring to indicate if stress levels
are increasing. The operator submitted a plan that these readings would be
taken twice a day at the same time. On December 14, 2011 the operator failed to
take the last reading just prior to another violent rock burst that resulted in
serious injuries to seven miners. The Mine Superintendent stated that the
readings could not be taken because [the] steel liner was installed over the
gauges and the gauges could not be read. Upon inspection it was found that the
stress gauges were provided with extended wire so that they could be read
during the installation of the liner. If this reading was taken it may have
indicated high levels, which have removed miners from the 2nd rock
burst. This condition has not been designated as “significant and substantial”
because the conduct violated a provision of the Mine Act rather than a
mandatory safety standard.

Ex.
G-9.

[11] Although
amendment 05 is a modification to Order No. 8605614, I consider it separately
in this case for compensation purposes. Order No. 8605614-05 is a withdrawal
order, but it did not withdraw any miners from the Mine as Order No. 8605614
initially did. Rather, Order No. 8605614-05 permits miners to enter the affected
area, but imposes upon Hecla the affirmative action of monitoring the stress
gauges. This distinction is critical for compensation purposes, since section
111 focuses upon operators violating a withdrawal order by failing to remove
miners from an area where MSHA forbid the presence of miners, but this case
focuses upon the violation of an additional affirmative requirement.

[12] I reject USW’s
assertion that the ending date of compensation must be June 12, 2013 because
MSHA terminated Order No. 8605614 on that date and I found in my October 29,
2014 decision that MSHA’s action to maintain both 103(k) orders was not
arbitrary or capricious. The Commission evaluates official MSHA enforcement
activity concerning withdrawal orders separately from their effect upon
compensation. Compensation analysis focuses “upon the conduct of the operator
and the conditions in the mine, not the sequencing of MSHA enforcement activity.”
Local Union, 1889, 8 FMSHRC at 1327; See Local Union 1609, District
2, United Mine Workers of America v. Greenwich Collieries, Division of
Pennsylvania Mines Corp., 8 FMSHRC 1302, 1306 (Sept. 1986) (refers to
“safety” and “compensation” considerations separately). Although the timelines
of the underlying orders and the compensation period often coincide, the
Commission bifurcates the analysis because it is possible, as in this case,
that MSHA’s enforcement decisions do not determine the duration of
compensation. I found that the 103(k) orders were not maintained in an
arbitrary or capricious manner in a decision separate from the current
compensation case. Although those orders directly underlie and are related to
this compensation case, they do not control this compensation case; USW
repeatedly argues against a “formalistic emphasis on sequencing” but chooses to
place that emphasis upon the orders when convenient for its own claims.

[13] After
withdrawal, a 103 order remains in effect and the operator can still violate
such an order by entering the mine against the prohibition of the 103(j) or
103(k) order, which could trigger sentence four compensation. In that
situation, the operator would comply with the 103 order when it removed the
miners from the mine. The operator would compensate miners beginning with the
issuance of the 103 order until their removal from the mine because at that
time the operator would once again be in compliance with the order. In this
situation, compensation runs from the time of the initial order to monitor
stress gauges until stress gauges no longer needed to be monitored. In either
situation, the compensation would not extend into the future for as long as the
103 order remained in effect.

[14] Within days of
the December 14, 2011 rockburst, Hecla notified MSHA that it would abandon the
5900 haulage drift and drive a bypass around that area.

[15] The Commission
has ruled that 103(k) orders should not preclude compensation under section

111. This ruling, however, primarily dealt with the interplay between section
     103 withdrawal orders, which are usually issued immediately when an accident
     occurs, and other types of withdrawal orders. Local
     Union 1889, 8 FMSHRC at 1323. It does
     not address interactions between multiple 103 orders. When MSHA issues a 103
     order, it has control of the affected area and any entrance into that area,
     which precludes the necessity to issue an additional, overlapping 103 order. In
     this instance, MSHA took the unusual action of issuing two 103 orders that were
     in effect at the same time and governed overlapping areas. I found that this
     action was not arbitrary or capricious. That finding was based upon the chaotic
     situation at the mine, which caused MSHA to maintain Order No. 8605614 as a
     “spotlight” on the dangerous 5900 area. Hecla Limited, 36 FMSHRC __,
     slip op. at 6. MSHA retained both 103(k) orders for an administrative or
     managerial purpose; Order No. 8605614 was not modified or used to control the
     mine after the issuance of Order No. 8605622. Instead, Order No. 8605614 simply
     served as a “spotlight” to prevent the most dangerous area in the mine from
     being overlooked. Although Order No. 8605622 could be terminated before Order
     No. 8605614, it was not necessary to keep Order No. 8605614 active; MSHA could
     have modified Order No. 8605622 to continue control over the 5900 area. Order
     No. 8605614 was a placeholder. It had no affirmative requirements or power once
     MSHA issued Order No. 8605622. Under Section 111, “the
     limited nature of compensation…represents a careful and deliberate balancing by
     Congress of the competing interests of miners and mine operators[,]” but it
     does not consider the administrative or managerial motives of MSHA when it
     controls a mine under a 103(k) order. Local Union 1261, 11 FMSHRC at
112. In this case, Order No. 8605622 does not preclude compensation, but it
     does affect the length of the compensation period. It is possible that a
     situation would arise that two 103(k) orders would interact differently with
     regard to section 111. My ruling is limited to the facts before me today.

[16] Order No.
8605622 closed the Silver Shaft, a decision that had no relation to the November
16, 2011 or December 14, 2011 rockbursts in the 5900 area, Order No. 8605614,
or Citation No. 8565565. The remediation MSHA required in the Silver Shaft
caused Order No. 8605622 to stay in place for over a year and did not address
the 5900 area, rockbursts, or pressure gauges.

[17] My analysis determining
the end date of compensation is similar to the nexus analysis to determine the
relation of a withdrawal order to the idling of miners.

[18] The Commission
has held that interest should be included in the payment of compensation to
miners:

To make the miners whole for
the time value of their compensable pay, therefore, we hold in affirmance of
the judge that interest is appropriate on sums of compensation due from the
date that the compensable pay would have been paid but for the idlement until
the date that the compensation due is tendered. This result comports with the
interest approach followed in discrimination cases under Arkansas–Carbona. 5
FMSHRC at 2051–53 & n. 15.

Local Union 2274, District
28, United Mine Workers of America v. Clinchfield Coal Co., 10
FMSHRC 1493, 1503 (Nov. 1988).