UtahAmerican Energy, Inc. v. Secretary of Labor

Plain-English summary

UtahAmerican Energy challenged additions to the Lila Canyon Mine's roof control plan for violent or unusually frequent coal and rock outbursts. The provisions required immediate notice to MSHA, a temporary production stop, restricted access while hazards were addressed, and a safety determination before work resumed. The company argued that the Mine Act authorized those steps only for defined accidents or imminent dangers and that broader requirements needed formal rulemaking. Judge Richard W. Manning held that section 103(h), read with the roof-control provisions, authorized mine-specific outburst reporting and that section 302(f) supported stopping work long enough to evaluate and correct dangerous conditions. He also held that the plan amendment did not require notice-and-comment rulemaking. The Judge denied UtahAmerican's motion for summary decision and left the contest proceeding scheduled for hearing.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(h) and 862(f); 29 C.F.R. §§ 50.2(h), 50.10, 75.220(a)(1), 75.222(a), and 75.223(d)
• Outcome: UtahAmerican's motion for summary decision was denied, and the citation contest remained set for hearing.
• Key point: A mine-specific roof control plan may require notice of serious outbursts and a temporary production stop when those measures support MSHA's information and roof-safety authority.

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

303-844-3577 FAX
303-844-5268

June 5, 2015

UTAHAMERICAN
ENERGY, INC.,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

CONTEST
PROCEEDING

Docket
No. WEST 2015-435-R

Citation
No. 7637000; 02/26/2015

Mine
ID 42-02241

Lila
Canyon Mine

ORDER DENYING
MOTION FOR SUMMARY DECISION

Before:           
Judge Manning

This case is before me upon a notice of
contest filed by UtahAmerican Energy, Inc. (“UEI”) pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (the “Mine
Act”). UEI filed a motion for summary decision accompanied by a legal
memorandum and 10 exhibits in support of its motion.[1]
The Secretary filed an opposition to the motion and UEI filed a reply to the
Secretary’s opposition. For the reasons set forth below, the motion for summary
decision is denied.

I. BACKGROUND

UEI operates the
Lila Canyon Mine, an underground coal mine in Carbon County, Utah. The cover
above the working sections of the mine is greater than 1,200 feet. On August
21, 2014, Russell J. Riley, MSHA’s District Manager for Coal District 9, sent a
letter to “Underground Coal Mine Operators” concerning “Roof Control Plan
Deficiencies Developing in

Cover
Exceeding 1200 Feet.” (Ex. 1).[2]
UEI was a recipient of this letter. The letter stated that roof control plans
applicable to development mining where the depth of cover exceeds 1,200 feet
“should be amended to include training, monitoring and communication, MSHA
notification, and required actions for safety regarding coal or rock
outbursts.” Id. Over the next few months, UEI and MSHA exchanged proposals
and held a meeting to see if they could agree upon an amendment to the mine’s
roof control plan in light of Riley’s letter. They were able to agree upon
language concerning MSHA’s requested changes with respect to training and with
respect to monitoring and communication. They reached an impasse regarding MSHA’s
requested changes requiring MSHA notification of outbursts and other actions
that must be taken. The language that MSHA wanted to include in the mine’s roof
control plan with respect to notifications and actions is as follows:

Required MSHA Notification and
Actions. Accidents due to outbursts meeting definitions in Part 50.2 will
be reported to the MSHA Call Center in accordance with Part 50.10. The MSHA
District Manager or designee will be immediately notified with any incident
resulting from an outburst that is not otherwise immediately reportable under
Part 50.10. These incidents would include any of the following that would be
considered abnormally violent or more frequent than those normally encountered:

a. A forcible ejection
of coal or rock that strikes a miner, causing injury.

b. A forcible
ejection of coal or rock that causes damage to mining equipment.

c. A forcible ejection of coal or rock that impedes
passage or impairs ventilation.

In
conjunction with the notification of the MSHA District Office, all production
in the affected mining section will cease, and all personnel will be removed.
Mine personnel will not be allowed to re-enter the mining section until
approved by the District Manager. An exception to this would be those
individuals who are necessary to restore ventilation if it was damaged by an
outburst (without removing coal or rock), under the direction of a certified
foreman.

(Ex.
1 at 3).

During
the negotiations over this provision, UEI sought to have it modified so that
the reportable events were limited to coal or rock outbursts that were already
required to be reported as “accidents” under 30 C.F.R. Part 50. (Ex. 4). MSHA
rejected that suggestion. (Ex. 5). On January 20, 2015, UEI sent a letter to
District Manager Riley again suggesting that MSHA approve UEI’s version of the
section on “Notification and Actions” but it also asked that it be issued a
technical citation in the event its proposal was again rejected by MSHA so that
the issue could be brought before a Commission Administrative Law Judge. (Ex.
6). In the meantime, UEI agreed to abide by a third alternative that it suggested
until the matter is resolved by the Commission. (Ex. 6, Attachment A). MSHA
agreed to issue a technical citation. In addition, MSHA agreed to accept this
third alternative in lieu of its original proposal for inclusion in the mine’s
roof control plan. (Ex 7 at 9).

This
third proposal provides:

Required MSHA Notification and Actions. Production in
the affected section will cease in the event that an abnormally violent or more
frequent than normal forcible ejection of coal or rock strikes a miner and
causes a reportable injury; causes damage to mining equipment that disables the
equipment from normal operation; impedes passage in a working face or
escapeway, or impairs ventilation in the affected section. The MSHA District Manager
will be immediately notified of the situation. Only personnel necessary to
restore ventilation devices damaged during the event, pump water, mitigate
other hazards, or secure the area from further deterioration will be allowed to
access the affected working area. These personnel will be under the direction
of a certified foreman.

(Ex.
6, Attachment A at 2, numbered as p. 31).

At UEI’s request, MSHA issued technical
Citation No. 7637000 so that UEI could bring the issue before an administrative
law judge. UEI agreed to follow all the roof control plan provisions requested
by MSHA, which includes the “third proposal” quoted above attached as Exhibit A
to the citation, during the pendency of this contest proceeding. By doing so,
UEI did not agree that the Secretary has the authority under the Mine Act or
his regulations to include the contested provisions in its roof control plan. UEI
filed a notice of contest and the case was assigned to me.

II. BRIEF SUMMARY
OF THE PARTIES’ ARGUMENTS

A.
UtahAmerican Energy

UEI’s
principal argument is that the above provision exceeds the Secretary’s
authority under the Mine Act. The Secretary seeks the authority to require,
through a roof control plan, that UEI cease production, withdraw all personnel,
and provide immediate notification to MSHA following outbursts that do not rise
to the level of accidents or imminent dangers as those terms are used in the
Mine Act. Congress has directly and precisely set forth situations where MSHA
may require a mine operator to cease production, withdraw miners, and provide
immediate notification. The only possible statutory bases for the Secretary’s authority
to stop production and withdraw miners are found in sections 103(j) and (k),
104, and 107(a) of the Mine Act. 30 U.S.C. §§ 813(j) and (k), 814, and 817. Section
103(j) requires immediate notification only in the case of accidents and the
Secretary has provided guidance with respect to this requirement in 30 C.F.R. §
50.10. This regulation only applies when an “accident” has occurred, as that
term is defined in section 50.2(h). There can be no dispute that the triggering
events listed in the provision that the Secretary is seeking to include in the
roof control plan do not necessarily rise to the level of an “accident.”[3]

UEI
argues that the Secretary’s actions cannot be upheld under the two-step
deference analysis set forth in Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 827, 842-43 (1984). Under step one, it is clear
that Congress did not grant authority for the Secretary to withdraw miners or
require immediate notification of outbursts or other events except as enumerated
in the Mine Act itself. The Mine Act clearly sets forth those instances where a
withdrawal order is authorized. Sections 103(j) and 103(k) delineate situations
where Congress required operators to notify MSHA of accidents and authorized
MSHA to withdraw miners following such accidents. Section 107(a) grants MSHA
the authority to withdraw miners in the event he discovers a condition that
creates an imminent danger. Section 104 of the Mine Act sets forth the various
types of enforcement orders that MSHA inspectors are authorized to issue for
violations of safety and health standards. There is no other provision in the
Mine Act that delegates authority to the Secretary to (1) require the immediate
notification of events that are not accidents or (2) withdraw miners from a
mine or area of a mine in circumstances not set forth in the Mine Act.

Under
step two of the Chevron analysis, the issue is whether the Secretary’s
interpretation is based on a “permissible construction of the statute.” Chevron,
467 U.S. at 843. In this instance, the Secretary must establish that her
interpretation of the statute is a reasonable one. Id. at 844. UEI
maintains that the “Secretary’s requirements to cease production, withdraw
personnel and provide immediate notification following coal or rock outbursts
that are not accidents or imminent dangers result from an impermissible
construction of the Mine Act and are not a reasonable interpretation.” (UEI Mem.
at 14). In the absence of statutory authority, there is “no permissible
construction of the Mine Act that gives the Secretary the power to unleash his
hoped-for new regulation” in the guise of a roof control plan provision. Id.

UEI argues that the Secretary has not
offered a reasonable explanation for his interpretation of the Mine Act or his
regulations that would permit a roof control plan to require cessation of
production, withdrawal of miners, and immediate notification for outbursts that
are not accidents or imminent dangers. The statutory language in section 302 of
the Mine Act, “Roof Support,” does not support the Secretary’s interpretation. 30
U.S.C. § 862. In addition, none of the Secretary’s proposed rules, final rules,
regulations, or prior interpretations relating to roof control plans have
“required, allowed, referenced, discussed, or otherwise mentioned in any way
the cessation of production, withdrawal of miners, or immediate notification to
the MSHA District Manager in relation to any roof, rib, or other ground control
issue.” Id. at 17. MSHA’s “Roof Control Approval and Review Procedures
Handbook is silent as to the issue. (MSHA Handbook Series, Handbook No.
PH13-V-4 (Dec. 2013)). Thus, the “Secretary’s position in this case is
inconsistent not only with his own rules and regulations, but also his
comprehensive interpretative guidance contained in MSHA’s Roof Control handbook.”
Id. at 19.

Finally, UEI argues that the “additional
measures” that a district manager may take in roof control plans to protect
miners, as specified in 30 C.F.R. §§ 75.220(a)(1) and 75.222(a), cannot be
reasonably interpreted to include the contested provision in this case. UEI
contends that such “additional measures” must be “similar in scope and nature
to those expressly enunciated in Section 302 of the Mine Act or in the
Secretary’s existing roof control plan regulations.” Id. at 19. The Secretary
cannot use these regulations to require additional measures that exceed the
scope of his statutory authority.

B.
Secretary of Labor

The
Secretary maintains that the contested roof control plan provision is “modest,
reasonably directed to outburst hazards . . . and [is] consistent with
conditions and practices specific to the mine.” (Sec’y Resp. at 1). Indeed, UEI
represents that its current roof control plan provisions are sufficient to
prevent coal or rock outbursts at the mine. (Ex. 7 pgs. 6-7). If that is the
case, then the challenged provisions will have no material effectthe mine’s
operations except in unusual circumstances when notification and withdrawal are
warranted.

The
Secretary emphasizes that it is important to “recognize the limited and
precisely-drawn nature of the requested plan modifications, each of which are
triggered only in the event of a significantly dangerous roof or pillar event,”
that is an “abnormally violent or more frequent than normal forcible ejection
of coal or rock” from mine roof or rib. (Sec’y Resp. at 4).  With the exception
of district manager notification, the challenged provision only requires UEI to
take those steps that an operator would be required to take in any event, which
are to (1) cease production, (2) assess the current mine conditions, (3) assign
only necessary personnel to take the steps necessary to correct any damage
resulting from the outburst, and (4) to resume mining operations after
determining that it is safe to do so. Id. As modified in the “third
proposal” during negotiations, the proposed plan amendment does not
“contemplate MSHA permission or approval prior to UEI acting to assure the
safety of its miners following an outburst and then resuming production.” Id.
at 5. 

The “authority to assure adequate
protection against rock and coal outburst hazards is within the Secretary’s
broad statutory roof control plan approval authority, as outbursts intricately
are connected to roof control measures and practices, which contemplate factors
including quantity of supported overburden, as well as geological features
associated with the overburden and surrounding strata.” Id. at 8. Thus,
District Manager Riley properly sought to modify the mine’s roof control plan
to “more effectively protect miners against hazards associated with potential
coal and rock outbursts.” Id. at 9.

District
Manager Riley has legal authority to request immediate notice of specific coal
or rock outbursts at the Lila Canyon Mine. The Secretary relies upon section
103(h) of the Mine Act to seek information about coal and rock bursts. 30
U.S.C. § 813(h). The Commission recently held that section 103(h) gives the
Secretary “authority to request whatever information [he] deems relevant and
necessary.” Big Ridge, Inc., 34 FMSHRC 1003, 1012 (May 2012). The
Commission quoted, with approval, the administrative law judge’s conclusion
that “section 103(h) creates ‘a legitimate basis for enforcement of reporting
requirements even without the Part 50 rules.’” Id. quoting Big Ridge, Inc., 33
FMSHRC 1306, 1320 (May 2011) (ALJ) (citation omitted).  The Secretary contends
that section 103(h) of the Mine Act together with section 302(a) provide
District Manager Riley with ample authority to request UEI officials to immediately
notify him after one of the enumerated outburst events. Such a reporting
requirement furthers Riley’s ability to perform his function to continually review
roof control plans “‘taking into consideration any falls of roof or rib or
inadequacy of support of roof or ribs’ to assure the plan’s adequacy given
current conditions and practices at an individual mine.” (Sec’y Resp. at 11
quoting section 302(a)). A district manager is required to consider such
information when analyzing the continuing sufficiency of existing roof control
plans.

While it is true that the contested roof
control provision requires affirmative action by UEI without a specific request
for information from MSHA, District Manager Riley is not privy to the
information he is seeking so he would not be in a position to request
information about an outburst after it has occurred. The Secretary argues that
“given the district manager’s significant authority to obtain information
necessary to perform his duty to assure the continuing sufficiency of Lila
Canyon’s roof control plan, as well as his duty to assure that UEI is taking
appropriate and timely actions to protect miners from hazards associated with
outbursts, [District Manager] Riley’s request for personal notification of
significant outbursts is reasonable and readily is recognized within the scope
of his statutory authority.” Id. at 17. He seeks notification to help
him ensure that the roof control plan remains adequate in light of outbursts as
mining progresses. The types of outbursts about which Riley seeks information
could be precursors to subsequent, more violent and hazardous outbursts. MSHA’s
safety standards and other regulations do not limit the district manager’s
authority to request information about such outbursts.

District Manager Riley also has the
legal authority to require UEI to cease production, assess the conditions, and
address the hazards before determining whether it is safe to resume mining. This
requirement is incorporating UEI’s “statutory obligations into the roof control
plan to better assure that Lila Canyon personnel recognize and act consistently
with their statutory duties following an outburst.” Id. at 21. This
requirement meets the first step of Chevron analysis because section
302(f) of the Mine Act requires an operator to assess potential dangers
associated with the roof, face, and ribs at the mine before engaging in normal
production activities. The proposed roof control plan language merely sets
forth “the operator’s obligation under section 302(f) to independently
undertake the specified actions to assure that roof support hazards associated
with an enumerated outburst event are corrected immediately, and to
unilaterally determine that the affected area is safe, before allowing miners
to resume production activities.” Id. at 22. Even assuming that there is
ambiguity in the statutory language, Chevron mandates deference to an
interpretation that is reasonable and consistent with other statutory provisions.
UEI’s focus upon sections 103(j) and (k) and 107(a) is misplaced. Those
sections, as well as section 104, are distinguishable because those provisions
concern MSHA’s unilateral authority to shut down areas of a mine until MSHA
determines that the affected area is safe.

C.
UtahAmerican’s Reply

Section
103(h) in conjunction with section 302(a), section 302(f), and 30 C.F.R. §
75.223(d) do not provide the district manager with the authority to require
immediate notification of outbursts. (UEI Reply at 2). The Secretary may
reasonably require information from operators from time to time, but he cannot
place an affirmative duty on operators to immediately report events that are
not otherwise reportable under the statute or his regulations. Id. at
2-3. The Secretary has significantly overstated the district manager’s authority
in this regard. Id. at 3.

Section
302(f) of the Mine Act does not authorize the Secretary to require the
cessation of production and withdrawal of miners. Id. at 5. The proposed
roof control plan provision is clearly designed to require more than what is
already provided for in the Mine Act and in the Secretary’s regulations. Id.
at 6. The Secretary is “attempting to remove the mine operator’s discretion
in section 302(f) in ascertaining the existence of a danger by creating a per
se rule requiring the cessation of production and withdrawal of miners
following the occurrence of specific categories of outbursts that the Secretary
has pre-determined constitute dangers, regardless of the circumstances actually
encountered by the mine operator.” (Id. at 6)(emphasis in original)(footnote
omitted).

III. DISCUSSION
AND ANALYSIS

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)). I conclude that, as presented
by the parties, there are no genuine issues as to any material fact. For the
reasons set forth below, I find that UEI is not entitled to summary decision as
a matter of law. Consequently, I deny UEI’s motion for summary decision.

As
material here, the Secretary seeks to add two additional requirements in UEI’s
roof control plan. First, he wants to require the operator to immediately
notify the MSHA district manager whenever there is “an abnormally violent or
more frequent than normal forcible ejection of coal or rock,” which:

1.         strikes
a miner and causes a reportable injury;

2. causes
   damage to mining equipment that disables the equipment from normal operation;

3.         impedes
passage in a working face or escapeway; or

4.         impairs
ventilation in an affected section.

(Sec’y
Resp. at 3).[4]
Second, in the event that such immediate notification must be provided, the
Secretary wants to require the operator to only allow “personnel necessary to
restore ventilation devices damaged during the event, pump water, mitigate
other hazards, or secure the area from further deterioration” in the affected
working area. This work must be conducted under the direction of a “certified
foreman.” UEI may resume production only after UEI determines that it is safe
to do so. I analyze the two requirements separately below.

A.
Proposed Immediate Notification Requirement

The proposed addition to the roof
control plan only comes into play if the forcible ejection is not otherwise
immediately reportable under section 50.10 of the Secretary’s regulations. Under
section 50.10, certain specified events must be immediately reported to MSHA
via a toll-free number. On the other hand, the proposed roof control plan
provision requires immediate notification to District Manager Riley. The
immediate notification provisions of section 50.10 are invoked whenever an
“accident” occurs at a mine, as that term is defined at section 50.2(h). The
term “accident” is defined to include the death of an individual at a mine, an
injury to an individual at a mine which has a reasonable potential to cause
death, the entrapment of an individual under certain circumstances, and falls
of roof or ribs under certain circumstances. (Sections 50.10, 50.2(h)(3) and
50.2(h)(8)).

The definition of “accident” also
includes a “coal or rock outburst that causes withdrawal of miners or which
disrupts regular mining activity for more than one hour.” (Section 50.2(h)(9)).
Such an event is currently required to be immediately reported by UEI via the
toll-free number so UEI should not be required to contact the district manager under
the proposed roof control plan provision.[5]

The Secretary contends that he has legal
authority to require UEI to immediately notify the district manager of
abnormally violent or more frequent than normal forcible ejection of coal or
rock that causes any of the four events listed above. He cites section 103(h)
of the Mine Act to support his position. That section states, in part, that
every operator of a coal mine “shall establish and maintain such records, make
such reports, and provide such information as the Secretary . . . may
reasonably require from time to time to enable him to perform his functions
under this Act.” 30 U.S.C. § 813(h).

I agree with the Secretary’s argument. One
of the Secretary’s most important functions is to review roof control plans to
ensure the safety of miners. The control of outburst hazards is appropriately
addressed in an operator’s roof control plan. Notification of the types of
outbursts set forth in the proposal furthers the district manager’s ability to
perform his functions under the Mine Act. It will provide the district manager
with the opportunity to effectively evaluate the situation because these
outbursts may be precursors to more significant roof control problems.[6]
The reporting of these outbursts will allow the district manager to offer input
and take action where appropriate to more effectively assure that miners are
protected from subsequent, more hazardous events. (Ex. 7 at 8).

I find that section 103(h), when read
with section 302, provides sufficient legal basis to sustain the Secretary’s
request that UEI immediately report the specified outbursts to the district
manager. “The language of section 103(h) does not limit the Secretary’s access
only to records that are specifically required to be maintained or prescribed
by regulation, but instead give [him] authority to request whatever information
[he] deems relevant and necessary.” Big Ridge, Inc., 34 FMSHRC 1003,
1012 (May 2012). Section 103(h) “grants a broad delegation to the Secretary to
require mine operators to provide information necessary to enable the Secretary
‘to perform his functions’” under the Mine Act. Energy West Mining Co., 40
F.3d 457, 461 (D.C. Cir. 1994). It “contains little limitation on the
type of information to be provided.” Id.

UEI contends that the Secretary cannot
use section 103(h) to create a standing, affirmative request for immediate
notification of and information about outbursts. I hold that section 103(h) should
not be interpreted in such a limited fashion. It is impossible for the district
manager to request information about a specific outburst because he would not
know about it without being advised of its occurrence by the mine operator. I
find that because District Manager Riley has a specific need to obtain
information necessary to perform his duty to assure the continuing sufficiency
of Lila Canyon’s roof control plan, his request for notification of significant
outbursts is reasonable and is within the scope of his statutory authority. The
other provisions in the Mine Act, including sections 103(j) and (k), do not
limit the Secretary’s authority to obtain information under section 103(h).[7]

UEI greatly exaggerates the impact of
the Secretary’s proposal. UEI candidly states that the Lila Canyon Mine has not
experienced any coal or rock outbursts and that its existing roof control plan
is sufficient to prevent such outbursts at the mine. (Sec’y Resp. at 2; Ex. 6,
Jan. 19, 2015 letter of Jared Childs). Thus, UEI will only be required to
immediately notify the district manager under this provision on rare occasions.
I hold that the contested roof control plan provision requiring immediate
notification[8]
is “reasonable and neither overly broad nor burdensome.” See Big
Ridge, 34 FMSHRC at 1022.

B.
Proposed Requirement that Production Cease Until Affected Area Restored

I hold that the Secretary’s legal
authority to require the cessation of production can be resolved under the
first step of Chevron. Section 302(f) of the Mine Act requires mine
operators to “examine and test the roof, face, and ribs before any work or
machine is started” in areas where miners are exposed to dangers from falls or
roof, face, and ribs. 30 U.S.C. § 862(f). That section also requires operators
to perform such examinations and testing “as frequently thereafter as may be
necessary to insure safety.” Id. Finally, it provides that when
dangerous conditions are found, they must be corrected immediately. Id. An
“abnormally violent or more frequent than normal forcible ejection of coal or
rock” certainly qualifies as a dangerous condition if it causes a reportable
injury, disables equipment, impedes passage in a working face or escapeway or
impairs ventilation. Consequently, the requirement to temporarily cease
production and withdraw miners is fully supported by the language of the Mine
Act.

The contested provision of the roof
control plan recognizes that when there has been a violent outburst or frequent
outbursts that meet the requirements stated therein, the conditions in the area
must be evaluated. To perform this evaluation, production in the affected area
must stop and miners not involved in the evaluation need to be removed from the
immediate area. The plan provision allows those miners necessary to (1) restore
damaged ventilation devices, (2) pump water, (3) mitigate hazards, and (4)
secure the area from further deterioration to access the affected working area under
the direction of a certified foreman. Once mine management determines that the
area is safe, normal work may continue in the affected area. Unlike the
original proposal suggested by the Secretary, the operator independently
determines when conditions are safe and normal mining operations may resume.

UEI argues that MSHA is only authorized
to withdraw miners in situations covered by sections 103(j) and (k), 107(a),
and 104. I agree that MSHA does not have the authority to issue a withdrawal
order except as specifically authorized by the Mine Act. The Secretary is not
seeking to issue a withdrawal order when one of the specified outbursts occurs.
Instead, as stated above, the Secretary is seeking to require the operator to
take a few reasonable steps to ensure the safety of the area around an outburst
before the area is returned to normal operations. This requirement bears no
relationship to the issuance of a withdrawal order by an MSHA inspector. Under
the Secretary’s proposal, the operator determines what areas are affected by
the outburst, what steps need to be taken to ensure the area is safe, and when
the area can return to normal operations. The operator’s actions can be
proportional to the seriousness of the conditions.[9]

I conclude that the language contained
in section 302(f) provides the Secretary with the authority to require UEI, through
a roof control plan amendment, to cease production in an area affected by an
abnormally violent or more frequent than normal forcible ejection of coal or
rock until it conducts an assessment of the conditions and determines that the
area can be safety returned to production. 

C.
Formal Rulemaking Was Not Required For Proposed Roof Control Provision

UEI also contends that “[e]ven if the
Court finds that the Secretary’s proposed requirements are lawful under Chevron,
the Court should nevertheless hold that the requirements constitute substantive
rules subject to formal notice and comment rulemaking requirements of the
Administrative Procedure Act (“APA”). (UEI Mem. at 20-21). UEI argues that the
disputed provision is a substantive rule that is subject to formal rulemaking
under section 4 of the APA. 5 U.S.C. §553.

I reject UEI’s argument. The process of
negotiating and adopting a roof control plan “is essentially one of setting
standards, not, in many ways, substantially different from setting more lasting
and general standards through the rulemaking process.” Mach Mining LLC v.
Sec’y of Labor, 728 F.3d 643, 650 (7th Cir. 2013). Congress created a
special procedure for mine plans and, as a general matter, the Secretary is not
required to provide for notice and comment rulemaking when including a new provision
in a roof control plan. The process of negotiating a roof control plan
provision is a congressionally authorized procedure for setting roof control
standards for a mine that is outside the normal notice and comment process.

UEI maintains that the requirement to
immediately report certain outburst events is a new substantive rule that must
be subjected to notice and comment rulemaking. (UEI Mem. at 25). It argues that
the sole statutory basis for immediate notification is section 103(j) of the
Mine Act, “which unequivocally does not require immediate notification of coal
or rock outbursts that do not rise to the level of accidents.” Id. The
“Secretary effectively and significantly has added a new provision to Section
103(j) and to the reporting requirements of 30 C.F.R. Part 50[.]” Id. This
new immediate notification requirement “imposes affirmative obligations
requiring the time and effort of the mine operator and also subject[s] the mine
operator or its personnel to enforcement actions in the event of a failure to
comply with such obligations.” Id.

As stated above, section 103(h) together
with section 302 provide a legal basis to support the Secretary’s proposed
requirement in the roof control plan. The proposed roof control plan provision
imposes affirmative responsibilities upon UEI, but the Mine Act supports the
imposition of these responsibilities. The Secretary was not required by the APA
to engage in notice and comment rulemaking before requiring immediate
notification of the specified outburst events. Id. at 24-25, 27.

In addition, UEI argues that the
requirement in the proposed roof control plan amendment to cease production and
withdraw miners cannot be validly enforced by the Secretary without first
following the notice and comment requirements of the APA because the provision
is a substantive rule.

As discussed above, the Secretary is
relying upon section 302(f) of the Mine Act, which provides that if miners are
exposed to dangers from falls of roof, face and ribs, then the operator shall
examine and test the area “before any work or machine is started and as
frequently thereafter as may be necessary to ensure safety.” 30 U.S.C. §862(f).
That section also requires that when dangerous conditions are found, they shall
be corrected immediately. As stated previously, an “abnormally violent or more
frequent than normal forcible ejection of coal or rock” qualifies as a
dangerous condition if it causes a reportable injury, disables equipment,
impedes passage in a working face or escapeway or impairs ventilation. Thus,
the proposed amendment to the roof control plan does not constitute a new
substantive rule requiring notice and comment because a substantially similar
requirement is already present in the Mine Act.

IV.
ORDER

For
the reasons set forth above, the motion for summary decision filed by
UtahAmerican Energy, Inc., is DENIED. I find that UtahAmerican Energy is
not entitled to summary decision as a matter of law. This case will proceed to
hearing on September 3, 2015, as previously scheduled, unless the parties reach
an agreement as to an alternative resolution.

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Jason W. Hardin,
Esq., and Artemis D. Vamianakis, Esq., Fabian & Clendenin, 215 South State
Street, Suite 1200, Salt Lake City, UT 84111-2323

Steven
D. Turow,
Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nd Floor, Arlington, VA 22209-2296

RWM

[1]
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).

[2]
Counsel
for UEI filed a declaration in support of the summary decision motion. Attached
to the declaration are 10 exhibits. Exhibit references in this order are to the
exhibits attached to the declaration.

[3]
UEI does
not dispute that if a “forcible ejection of coal or other rock” creates a
condition that fits into the definition of an “accident” as that term is
defined in section 50.2(h), then it would be required to comply with the immediate
notification requirements of section 50.10 and that it would also be required
to comply with any orders of withdrawal issued by MSHA under sections 103(j)
and 103(k) of the Mine Act as a result of such accident.

[4]
I presume
that the term “reportable injury” refers to an “occupational injury” as defined
in section 50.2(e) that is required to be reported to MSHA under section 50.20.
UEI and the Secretary should clarify this language to avoid any future
disputes.

[5]
In his
response, the Secretary implies that UEI would be required to call both the
toll-free number and the district manager in such circumstances. (Sec’y Resp.
15-16). I do not believe that the disputed plan provision should require a mine
operator to immediately report the same event to MSHA two times.

[6]
In his
February 20, 2015, response to UEI’s objections to the plan provision, District
Manager Riley stated: “Unfortunately, the history of coal bursts is replete
with examples of significant, “precursor” incidents that were not reported to
MSHA, and which were subsequently followed by major events that caused
fatalities, serious injuries and/or projectile material capable of resulting in
death or serious injury to miners.” (Ex. 7 at 8).

[7]
UEI also
contends that the Secretary’s regulation at 30 C.F.R. § 75.223 already
addresses how “unplanned roof fall and rib fall and coal or rock burst that
occurs in the active workings” must be reported to MSHA. (UEI Reply at 4
quoting section 75.223(b)). That regulation applies to all coal mines whereas
the proposed amendment to the roof control plan applies to the Lila Canyon Mine
only because of its depth of cover. Roof control plans are designed to take
account of conditions applicable to the mine in question. The additional
reporting requirement in the roof control plan is consistent with the
Secretary’s regulation and is an additional requirement imposed due to the
depth of the working sections of the mine.

[8]
The issue
of what is meant by the phrase “immediately notified” is not before me. The
notification requirement in section 103(j) of the Mine Act does not
automatically apply to the proposed roof control plan provision. Consequently,
it does not follow that the roof control plan is necessarily violated if the
time between the outburst and the notification is greater than 15 minutes. UEI
and the Secretary should attempt to negotiate a workable reporting protocol.

[9]
It is
possible that one of the concerns of UEI is that, with the required
notification, MSHA may determine that the conditions at the mine merit an order
under sections 103(j), 104 or 107(a). I agree that a mine operator may be
subject to greater scrutiny by MSHA when it notifies the district manager of an
outburst. As discussed above, an abnormally violent or a series of more
frequent than normal outbursts may indicate that a more serious problem is
present that could endangers the lives of miners.