Elk Run Coal Company v. Secretary of Labor

Plain-English summary

Elk Run Coal challenged a safeguard requiring controls for mud, ledges, and water in mine travelways before MSHA issued a later citation or order under that safeguard. The Secretary argued that the Commission lacked jurisdiction until a violation was cited. Judge William S. Steele held that the Commission's authority to review citations and orders implied authority to review the safeguard that would support them. He also reasoned that requiring an operator to violate a safeguard before obtaining review would create due-process concerns and unsafe incentives. The dismissal motion was denied, and the parties were directed to arrange discovery and depositions.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(d) and 874(b)
• Outcome: The Secretary's motion to dismiss the pre-enforcement safeguard contest was denied.
• Key point: The Commission may review a safeguard before a later citation because the safeguard already functions as a mine-specific mandatory standard.

Full text (FMSHRC public release)



.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-920-8689

                                                              
 

March 4, 2014

ELK RUN COAL COMPANY,

                           Contestant

                        v.

SECRETARY OF LABOR

  MINE SAFETY AND HEALTH   

  ADMINISTRATION (MSHA),

                           Respondent

CONTEST PROCEEDING

Docket No. WEVA 2013-1298-R

Notice of Safeguard No. 8154999; 08/01/2013

Mine: Powellton Deep Mine

Mine ID: 46-09163

           

ORDER DENYING THE SECRETARY OF LABOR’S

MOTION TO DISMISS NOTICES OF CONTEST

Before: Judge Steele

The instant proceeding is before me on Elk Run Coal
Company’s (“Elk Run� or “Contestant�) “Notice of Contest,� regarding a
safeguard (No. 8154999) issued by the Secretary pursuant to Section 314(b) of
the Act (30 U.S.C. §874(b) and 30 C.F.R. §75.1403-1. The Secretary of Labor,
Mine Safety and Health Administration (“Secretary�) filed a “Motion to Dismiss
Notices of Contest� on September 27, 2013. After consideration of the arguments
of the parties and for the reasons set forth below, the Secretary’s Motion is
hereby DENIED.

The Notice of Contest was filed with respect to Safeguard
8154999 was issued on August 1, 2013. The inspector allegedly noted bottom
irregularities at the mine and issued the safeguard to prevent mud, ledges, and
water accumulation in travel-ways.

The Mine Act permits the Secretary to issue “safeguards
adequate, in the judgment of an authorized representative of the Secretary, to
minimize hazards with respect to transportation of men and materials….� See
30 U.S.C. § 874(b). “Once issued, the safeguard operates as a mandatory
standard for that mine.� Oak Grove Resources, LLC, 2013 WL 4140414, *3
(July 25, 2013). That is, from that point forward, failure to comply with
safeguard will result in a citation or order just as if the operator had
violated a promulgated mandatory standard.

There is no question that the Commission has jurisdiction
to decide on the validity of a safeguard after the issuance of a citation or
order related to that safeguard and the proposal of a civil penalty. See e.g
Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992); see also Secretary’s
Motion to Dismiss at 3-6. The issue in this proceeding is whether the
Commission has jurisdiction to determine the validity of a safeguard if no
subsequent citation or order has been issued.

The undersigned finds that Congress granted the Commission
the necessary authority to hear this contest. The Mine Act confers upon
Commission Judges jurisdiction to hear a variety of cases. See 30 U.S.C.
§815(b)(2)(temporary relief orders); (30 U.S.C. §817(e)(contests to imminent
danger orders); 30 U.S.C. 815(c)(complaints of discrimination); 30 U.S.C. §821(complaints
for compensation). In this instance, the relevant jurisdiction is authorized in
Section 105(d) (30 U.S.C. §815(d)).[1]

Further, “where the statute creates Commission
jurisdiction, it endows the Commission with a plenary range of adjudicatory
powers to consider issues, to make findings of fact and conclusions of law, and
to render relief – in short, to dispose fully of cases committed to Commission
jurisdiction.� Drummond Company, Inc., 14 FMSHRC 661, 674 (May 1992).

There is no explicit grant of authority in the Mine Act
empowering the Commission to consider the validity of safeguards. However, in
addition to explicit authority, the Commission possesses implied authority to
hear related issues. For example, the Commission has held (with Court of
Appeals concurrence) that section 105(d) grants implied authority to grant
declaratory relief, as appropriate, in contest proceedings. Kaiser Coal
Corp., 10 FMSHRC 1165, 1171 (Sep. 1988); and Climax Molybedenum Co. v. Secretary,
703 F.2d 447, 452 (10th Cir. 1983). Similarly, the Commission held
in Drummond that it had the implied authority to examine an MSHA Program
Policy Letter based, in part, on the Mine Act’s grant of power to review
“question[s] of law, policy or discretion,� and to direct review sua sponte
of matters that are “contrary to…Commission policy� or that present a “novel
question of policy.� Drummond 14 FMSHRC at 674-675 citing 30
U.S.C. §823(d)(2)(A)(ii)(IV) & (B).

I find that the instant proceeding presents just such an
instance of implied authority. The authority to hear a citation or order
implies the authority to examine the underlying safeguard. In this way, a
safeguard is analogous to the situation in Drummond, where the
Commission found that the ability to hear contest proceedings implied the
authority to examine a Program Policy Letter issued by the Secretary which
informed MSHA’s decision in proposing penalties. 14 FMSHRC at 673-676. If a
policy issued by the Secretary can form the basis for a citation or order then,
under Section 105(d), the Commission has authority to hear a challenge to that
issuance. Here, a safeguard serves as the first step in the issuance of a
citation and as a threat of civil penalty. In fact, with the requirement that
an operator correct the hazardous condition, a safeguard is analogous to a
non-assessable citation. In light of this close nexus between a safeguard and a
citation or order, I find that the Commission has authority to hear this case.

Furthermore, due process and public policy also weigh in
favor of finding Commission authority to hear such cases.

In considering due process, it is important to note that
even if no citation or order is issued with respect to a safeguard, that
safeguard is already constraining or otherwise adversely affecting the
operator. As noted supra, the safeguard acts as a mandatory standard at
the subject mine. The operator is required to take potentially time-consuming
or expensive actions to ensure that it complies with this new “standard.� In
short, the Secretary’s actions with respect to a safeguard place some burden on
the rights of a private individual (in this case a private corporation). I am
concerned that without recourse to the Commission, an operator would have no
way to challenge this government action and would suffer some harm to its
rights.

In the instant case, Contestant was required to change its
behavior and to take potentially expensive and time-consuming actions based on
a mandatory directive by a federal inspector. As a result, there must be some
forum at which Contestant can apply for relief. It is impossible that an
individual can be constrained by the government and maintain no avenue of
appeal.

In light of this infringement on an operator’s
prerogatives, there must be some court or agency with jurisdiction over a
safeguard even if there is no citation or order. If the Commission does not
have jurisdiction to grant relief in this matter, then the Contestant must have
recourse to an Article III tribunal. For the reasons stated supra, it is
clear that Congress intended that the Commission, rather than a federal court,
have jurisdiction over this matter. The federal courts agree. As the D.C.
District court stated, when the “Secretary acts in a manner which adversely
affects an operator, the proper procedure for review of that act [is] to
proceed first to the Commission and then to the appropriate Court of Appeals.� See
Bituminous Coal Operators’ Ass’n, Inc. v. Marshall, 82 F.R.D. 350, 353
(D.D.C. 1979). Therefore, in the interest of due process, the Contestant must
have some recourse to judicial review and that judicial review should come from
the Commission.

Beyond serving the interest of due process, the
Commission’s exercise of authority over the instant proceeding also supports
the purpose of the Act. As Congress noted, “the first priority and concern of
all in the coal or other mining industry must be the health and safety of its
most precious resource – the miner.� 30 U.S.C. §801(a). Mandatory standards,
safeguards, and other protections afforded by the Act should be implemented in
light of this goal to protect the health and safety of miners.

In the instant situation, if the validity of the safeguard
cannot be challenged until a citation or order is issued, an operator is
confronted with a perverse incentive. If the operator believes that the
safeguard is invalid it must choose to either comply with the safeguard and sit
on its rights indefinitely (incurring delay and costs as a result), or to
willfully violate the safeguard to gain access to the Commission. Under the
latter approach, it is possible that miners would needlessly be exposed to
hazards that might not otherwise arise. It order to protect its rights, an
operator may be forced to place miners in harm’s way. Surely the Mine Act does
not require such an absurd result. Exercising authority to hear the challenge
to the safeguard now prevents such a situation from occurring.

Finally, the Commission’s exercise of authority over the
instant proceeding ensures that the validity of the safeguard is determined in
a timely manner. If the Commission waits until a citation or order has been
issued pursuant to a safeguard, the delay between the issuance and the
challenge can be extreme. For example, in Oak Grove Resources, LLC, supra,
the time between the issuance of the safeguard and the subsequent challenge was
22 years. Over the course of years an operator could spend large amounts of
money complying with an invalid safeguard. More importantly, when the operator
can finally challenge the standard, the inspector and everyone involved with
the safeguard could be retired or deceased making the issue impossible to
properly adjudicate. Therefore, the Commission’s ability to hear this case now
protects the interest of fair and timely adjudication.

The Secretary presented several arguments for why I do not
have authority to hear this challenge to the safeguard. However, I do not find
any of these arguments to be compelling. I will address each argument in turn.

First, the Secretary cited Kaiser Coal Corp. for the
proposition that the Commission is an adjudicatory agency of limited
jurisdiction. (Secretary’s Brief at 3 citing 10 FMSHRC at 1169). Based
on this holding, the Secretary averred that Section 105(d) delineates the scope
of Commission authority to hear cases. (Id.). Specifically, the
Secretary noted that Section 105(d) lists the situations in which the
Commission has authority to hear a case and that, based on the principle of expressio
unius, exclusio alterius, failure to specifically list safeguards shows
that Congress did not intend the Commission to hear those cases. (Id. at
4 citing Marx v. Gen. Revenue Corp., --- U.S. ---, 133 S. Ct. 1166, 1181
(2013)).

The Secretary is correct that a safeguard is not amongst
the areas over which the Commission has explicit authority under Section
105(d). A safeguard is not a citation, order, or a violation. However, as noted
supra, a safeguard forms the basis for a citation, order, or a civil
penalty and therefore the Commission maintains the implied authority to consider
it.

It should be noted that my authority to hear matters not
explicitly stated in Section 105(d) is not only supported by relevant
Commission case law, but also by the Secretary’s position in this case. In its
brief, the Secretary argued that the validity of a safeguard is reviewable by
the Commission (albeit after a citation or order is issued). (Secretary’s
Brief at 3-6). Nowhere in the Mine Act does Congress explicitly grant the
Commission the right to review the validity of a safeguard. The Commission has
determined that this authority is implied based on the fact that citations and
orders are written pursuant to safeguards.

 If, as the Secretary argues, the Commission can only
consider issues explicitly stated in Section 105(d), then the Commission must never
have authority to consider the validity of a safeguard. Presumably if that were
the case, the Commission could determine the validity of a citation or order
issued pursuant to a safeguard (under the express grant of authority to do so in
Section 105(d)) but lacks any authority to consider the validity of the
underlying safeguard. This would analogous to the more common situation, when a
citation issued with respect to a mandatory safety standard. In such a case the
Commission may rule on the propriety of a citation or order but the validity of
the underlying standard is reserved for the Federal Courts.

However, as even the Secretary recognizes, the Commission
does have authority to hear challenges to safeguards. Therefore, there must be
implied authority outside the list in Section 105(d). Further, I see no
statutory reason for the proposition that this implied authority should be
limited to situations where a citation or order has already been issued. The
implied authority to consider a safeguard exists and therefore may be exercised
now.

The Secretary next argued that Commission precedent
supports his interpretation that I have no authority to consider the validity
of the safeguard at this time. (Secretary’s Brief at 8). However, in
doing so the Secretary first concedes that the Commission has never directly
addressed that issue. (Id.). Despite this, the Secretary notes that
historically, the Commission has only considered the validity of a safeguard
when a citation is being contested. (Id.). Specifically, the Secretary
pointed to several decisions where ALJs summarily refused to review safeguards
without subsequent citation or order. (Id. citing Beckley Coal Mining
Co., 9 FMSHRC 1454 (Aug. 1987)(ALJ Melick); Colorado Westmoreland, Inc.,
10 FMSHRC 1236 (Sep. 1988)(ALJ Morris); and Jim Walters Resources, Inc.,
18 FMSHRC 380 (Mar. 1996)(ALJ Merlin).

While I recognize that, as a general matter, Commission
ALJs have historically waited for a citation or order to be issued pursuant to
a safeguard before discussing the validity of that safeguard, I do not believe
that there was a statutory necessity for this restraint. As noted supra,
the implied authority to consider the validity of a safeguard exists at
issuance. To the extent that Commission ALJs chose not to exercise their
authority over challenges to safeguards, I believe they failed to fully
appreciate the extent of the Commission’s authority in these matters. As a
result, I do not find these cases to be persuasive.

Finally, the Secretary argued that the Commission has
implied that a review of a safeguard is not available until a citation has been
issued. (Id. citing Southern Ohio Coal Co. 14 FMSHRC at 13 (“An operator
may challenge a safeguard’s validity in a contest or civil penalty proceeding
arising from the issuance of a citation or order based on that safeguard.�)).

Contrary to the Secretary’s reading of Southern Ohio
Coal Co., I do not believe that the Commission has implied that it did does
have authority to hear challenges to the validity of safeguards at any time. In
Southern Ohio Coal Co., the Commission stated that the validity of a
safeguard is reached after a citation or order is issued, but it did not intend
to make a sweeping declaration regarding its rights and powers. The section
cited by the Secretary was merely dicta explaining how the issue generally
arises in a portion of the decision discussing the burden of proof. No issue in
that case turned on the timing of the challenge as an order had already been
issued on the subject safeguard. 14 FMSHRC at 2-3. As the Secretary has
conceded, the Commission has never decided on the issue of whether a citation
or order is needed to challenge the validity of a safeguard (though perhaps it
is time for the Commission to weigh in). Further, as noted supra, such
authority exists at the time of issuance. I do not believe the Commission
intended to deny the existence of that authority in a single sentence of a
decision where the ultimate issue here was not in contention.

            For the reasons set forth above, the Secretary’s
Motion to Dismiss Contestant’s Notices of Contest is hereby DENIED. The
parties are directed to mutually agree to a discovery and deposition schedule
so that a hearing can be set.

                                                                                                            /s/
William S. Steele 

                                                                                                            William
S. Steele

                                                                                                            Administrative
Law Judge

                                                           

Distribution
(Certified Mail)

Benjamin
Chaykin, Esq., U.S. Department of Labor, Office of the Regional
Solicitor, 1100 Wilson Boulevard, 22nd Floor, West, Arlington, VA
22209-2247

Christopher D. Pence, Esq.,
& Eric L. Silkwood Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701,
PO Box 2548, Charleston, WV 25329-2548

/tjb

[1] That section states:

If, within 30 days of receipt thereof, an operator of a
coal or other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section 104, or citation or a
notification of proposed assessment of a penalty issued under subsection (a) or
(b) of this section, or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued under section 104, or any
miner or representative of miners notifies the Secretary of an intention to
contest the issuance, modification, or termination or any order issued under
section 104, or the reasonableness of the length of time set for abatement by a
citation or modification thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary’s citation, order, or proposed
penalty, or directing other appropriate relief. Such order shall become final
30 days after its issuance. The rules of procedure prescribed by the Commission
shall provide affected miners or representatives of affected miners an
opportunity to participate as parties to hearings under this section. The
Commission shall take whatever action is necessary to expedite proceedings for
hearing appeals of orders issued under section 104.