Secretary of Labor v. Pocahontas Coal Company, LLC

Plain-English summary

MSHA issued five mine-specific safeguard notices governing transportation at Pocahontas Coal's Affinity Mine. Pocahontas directly contested the notices before any citation alleged a violation of them. The Commission majority held that safeguard notices function as mine-specific mandatory standards, not citations or orders independently reviewable under sections 105(d) or 301(a) of the Mine Act. It explained that an operator may obtain review through a later citation, including a technical citation based on momentary noncompliance and a nominal penalty. Commissioner William I. Althen dissented because he viewed each safeguard as an immediately binding order that should be reviewable without requiring an operator to disobey it first. The Commission affirmed the Judge and dismissed all five direct contests for lack of jurisdiction.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(d), 861(a), 874(b)
• Outcome: The dismissal of five direct safeguard contests was affirmed for lack of jurisdiction.
• Key point: A safeguard notice is reviewed through a citation alleging noncompliance, including a requested technical citation, rather than through a standalone contest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                           
:

MINE SAFETY AND HEALTH                 
:         Docket Nos. WEVA 2014-642-R

ADMINISTRATION (MSHA)                    
:                                 WEVA 2014-646-R

:                                WEVA 2014-647-R

v.                                              
:                                WEVA 2014-648-R

:                                 WEVA 2014-649-R

POCAHONTAS COAL COMPANY, LLC  
:                                

BEFORE: Jordan, Chairman;
Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY: Jordan, Chairman; Young,
Cohen, and Nakamura, Commissioners

This proceeding
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2012) (“Mine Act” or “Act”). It involves five notices of contest filed by
Pocahontas Coal Company, each challenging the validity of a notice of safeguard
issued by   the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) pursuant to section 314(b) of the Act.[1]
At issue in this matter of first impression is whether the Mine Act grants the
Commission jurisdiction to review a safeguard notice directly, independent of a
citation alleging a violation of that safeguard notice. We conclude that it
does not.

I.

Statutory Summary and Background

A
safeguard notice informs the mine operator about conduct that is mandated or
prohibited in a given situation involving transportation of miners and
materials in the mine. Although an operator is usually cited for violations of
mandatory safety and health standards developed through notice-and-comment
rulemaking pursuant to Title I of the Mine Act, 30 U.S.C. § 811(a), Title III
of the Mine Act, in section 314(b), also gives the Secretary the authority to
issue safeguards in underground coal mines to reduce hazards associated with
the transportation of miners and materials. 30 U.S.C. § 874(b). The Secretary
implements this

provision by authorizing
inspectors to issue safeguards on a mine-by-mine basis. The inspector

issues the safeguard in
writing and indicates a time by which the operator must provide and
subsequently maintain that safeguard. 30 C.F.R. § 75.1403-1(b). If the operator
does not comply with the safeguard, the inspector issues a citation. See
Wolf Run Mining Co., 659 F.3d 1197, 1203-04 (D.C. Cir. 2011), aff’g,
32 FMSHRC 1228 (Oct. 2010). When challenging such a citation, an operator
may contest the validity of the underlying safeguard notice. Wolf Run,
659 F.3d at 1202; Southern Ohio Coal Co., 14 FMSHRC 1, 2-4 (Jan. 1992)
(SOCCO II).

MSHA
recently adopted a “technical citation” policy for safeguards, akin to the
procedure used in resolving disputed roof control and ventilation plans. Program
Policy Letter (“PPL”) No. P14-V-02 (issued Sept. 24, 2014); Contest of Mine
Approval Actions, MSHA’s Program Policy Manual, V.G-4; see also, e.g.,
Mach Mining, LLC, 34 FMSHRC 1784, 1787 n.8 (Aug. 2012). Under this policy, an
operator who wishes to obtain Commission review of a safeguard notice may
request a “technical” citation with a nominal penalty, based on momentary
non-compliance with the terms of the safeguard notice. Thus, the technical
citation provides a basis for Commission review while ensuring miner safety.[2]

II.

Procedural Background

In January and
February 2014, MSHA issued five safeguard notices to Pocahontas Coal Company
pursuant to section 314(b) of the Mine Act, 30 U.S.C. § 874(b), directing that
certain safeguards to ensure the safe transportation of men and materials be
put in place at Pocahontas’ Affinity Mine. On February 27, 2014, Pocahontas
filed five notices of contest under section 105(d) of the Act, challenging the
validity of the safeguard notices. [3] 36 FMSHRC 1645, 1645 (June 2014) (ALJ).

Upon a motion by
the Secretary, the Judge issued an order dismissing the five notices of
contest. Noting that the Mine Act does not grant the Commission unfettered
jurisdiction, the Judge found that “[a] review of the Mine Act reveals no
statutory authority for the Commission to hear a contest to a notice to provide
safeguard in the context of a dedicated proceeding.” Id. at 1646. She
specifically noted that section 105(d), which provides an operator’s right to
contest the issuance of citations or orders, the associated penalties, and
abatement times, does not provide a right to contest safeguard notices, which
the Judge considered to be distinct from citations and orders. Id. at 1646-47.

Pocahontas filed
a petition for discretionary review challenging the Judge’s dismissal of the
notices of contest, which the Commission granted.

III.

Disposition

Pocahontas
contends that the Act provides jurisdiction to directly review safeguard
notices in two respects. First, Pocahontas claims that the Act generally grants
the Commission broad jurisdictional power to review all enforcement actions by
the Secretary, including safeguard notices. Second, Pocahontas claims that
safeguard notices are essentially citations, and are therefore reviewable under
section 105(d) of the Act. As discussed below, Pocahontas’ position conflicts
with the language of the Act, its legislative history, basic principles of
administrative law, and Commission case law. Accordingly, we conclude that the
Commission lacks jurisdiction to directly review a safeguard notice.

A.   
The Commission may only
review enforcement actions over which Congress granted it jurisdiction.

Although it is well settled that the Commission has
broad authority to address a wide range of disputes arising under the Mine Act,
the exercise of that authority is governed by the language of the Act’s
jurisdictional provisions. The Commission has long recognized that it is an
agency created under the Mine Act with certain defined and limited
administrative and adjudicative powers. See generally, e.g., Kaiser
Coal Corp., 10 FMSHRC 1165, 1169-70   (Sept. 1988); Old Ben Coal Co.,
1 FMSHRC 1480, 1484 (Oct. 1979); Rushton Mining Co.,    11 FMSHRC 759,
764 (May 1989). As an administrative agency created by statute, the Commission
cannot exceed the jurisdictional authority granted to it by Congress. Kaiser
Coal, 10 FMSHRC at 1169; Santa Fe Indus., Inc. v. Green, 430 U.S.
462, 472-73 (1977); Civil Aeronautics Board v. Delta Airlines, 367 U.S.
316, 322 (1961).[4]

Contrary to Pocahontas’ argument, the Commission does
not possess plenary authority to review all enforcement actions taken under the
Act. In Kaiser Coal, we explained that several provisions of the Mine
Act, including section 105(d), grant subject matter jurisdiction to the
Commission by establishing specific enforcement and contest proceedings and
other forms of action over which the Commission presides.[5]
10 FMSHRC at 1169. “Specific provisions, such as these, delineate the scope of
the Commission’s jurisdiction.” Id.[6]

B.    
The Act does not grant the
Commission jurisdiction to directly review safeguard notices.

We
conclude that no provision of the Act explicitly grants the Commission jurisdiction
to review safeguard notices, nor may any part of the Act be read broadly to authorize
such review. We focus our analysis on section 105(d), 30 U.S.C. § 815(d), and section
301(a), 30 U.S.C. § 861(a).[7]

1.     
Section 105(d)

As
noted above, section 105(d) states in relevant part that if an operator contests
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 . . .
the Commission shall afford an opportunity for a hearing.” 30 U.S.C. § 815(d). In
other words, section 105(d) provides for Commission review of citations or
orders issued under section 104,[8]
proposed penalty assessments, and the reasonableness of abatement times.

Significantly,
section 105(d) does not mention notices or other issuances establishing safeguards.
The precise list of jurisdictional triggers in section 105(d) strongly
indicates a Congressional intent to exclude other types of actions. See
Saxon v. Georgia Ass’n of Indep. Ins. Agents, Inc., 399 F.2d 1010, 1014
(5th Cir. 1968) (holding that “a power which has been withheld or denied by
Congress cannot be found to exist as an ‘incidental’ and ‘necessary’ power”
when Congress has specifically delineated other powers). Indeed, the Mine Act’s
legislative history provides that “an independent Mine Safety and Health Review
Commission  is established to review orders, citations and penalties.” S. Rep.
No. 95-181, at 11 (1977), reprinted in Senate Subcomm. On Labor, Comm.
On Human Res., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 599 (1978) (“Legis. Hist.”); see also Kaiser
Coal, 10 FMSHRC at 1169; Quinland Coals, Inc., 9 FMSHRC 1614, 1620
(Sept. 1987) (“The statutory scheme for review set forth in section 105
provides for an operator’s contest of citations, orders, and proposed assessment
of civil penalties.”). Safeguard notices are not citations or orders issued
pursuant to section 104, but rather issuances that establish safeguards
pursuant to section 314(b).

Accordingly,
we conclude that section 105(d) does not give the Commission authority to
review a direct challenge to a safeguard notice.

Pocahontas argues
that the terms “citation” and “order” in section 105(d) should be read broadly
to encompass all enforcement actions, so as to include safeguard notices. However,
safeguard notices are by their nature distinct from citations and orders
described in section 104. Section 104(a) provides that a citation shall be
issued by the Secretary if an operator has “violated this Act, or any mandatory
health or safety standard, rule, order, or regulation promulgated pursuant to
this Act . . . . Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have been
violated . . . [and] fix a reasonable time for [ ] abatement.” 30 U.S.C. §
814(a). Thus, according to the statutory language and consistent with MSHA
practice, a section 104 citation is a written allegation detailing a specific
violation of a specific standard, and containing a specific time by which the
violation must be abated.

In contrast,
safeguard notices function as mandatory standards. Section 314(b), which grants
the Secretary authority to require additional safeguards, is an interim
mandatory standard enforceable “in the same manner and to the same extent” as
any Title I mandatory standard, i.e., through the issuance of a section 104
citation or order. 30 U.S.C. §§ 861(a), 814(a). Because notices of safeguard
implement that authority, they are also, in effect, mandatory standards.  Wolf
Run, 32 FMSHRC at 1233. The result is a two-step process for enforcing violations
of section 314(b). An operator first receives a notice establishing the safeguard
to be provided. Then, in the event of a failure to provide that safeguard, the
operator may be issued a citation or order alleging a violation of the relevant
mandatory standard, i.e., the safeguard notice under section 314(b). Id.
An issuance cannot simultaneously provide a standard and allege a violation of
it; thus, a safeguard notice cannot be both a mandatory standard and a
reviewable citation or order. Accordingly, we reject Pocahontas’ claim that
notices of safeguard fall within the definition of a citation.

For
similar reasons, a safeguard notice differs from an order reviewable under
section 105(d) of the Act. Such orders generally require both the existence of violative
conduct and the withdrawal of miners from an affected area of the mine. See 30
U.S.C. § 814(b), (d), (e), (f), (g). As discussed above, safeguard notices are
mandatory standards which require an operator to implement protective measures;
they do not allege violative conduct or require withdrawal. Finding that
safeguard notices are reviewable citations or orders under section 105(d) would
contravene both the plain language of section 105(d), and the nature of
safeguard notices as mine-specific mandatory standards.[9]

In
its reply brief, Pocahontas points to judicial precedent indicating that the
Commission has authority to review orders issued under section 103(k), 30
U.S.C. § 813(k), even though the statutory language is silent on the matter.[10]
However, unlike a safeguard notice, authority
for Commission review of section 103(k) orders can be found in the Act’s
legislative history. See Am. Coal Co. v. Dept. of Labor, 639 F.2d 659,
660-62 (10th Cir. 1981); Pattison Sand Co., LLC v. FMSHRC, 688 F.3d 507,
515-16 (8th Cir. 2012). In determining that the Commission possessed the
requisite jurisdiction to review section 103(k) orders, the Tenth Circuit found
support in its reading of the entire Mine Act, as well as the legislative
history, which states that “an operator . . . may appeal to the Commission
the issuance of a closure order.” Am. Coal. Co., 639 F.2d at 660, quoting
S. Rep. No. 95-181, at 13 (1977), Legis. Hist. at 601 (emphasis added). This
language is particularly important, because a section 103(k) order, like other
MSHA enforcement orders, frequently does result in the withdrawal of miners,
i.e., it involves closure of an affected area. As stated in the Senate Report
on the Mine Act, the grant of authority in section 103(k) “is intended to
provide the Secretary with flexibility in responding to accident situations, including
the issuance of withdrawal orders.” S. Rep. No. 95-181 at 29, Legis.
Hist. at 617 (emphasis added). In contrast, as discussed above, a safeguard
notice requires the implementation of safety measures rather than the
withdrawal of miners. That section 103(k) orders are reviewable despite the
lack of an explicit grant of authority reflects their similarity to withdrawal
orders reviewable under section 105(d), a similarity which safeguard notices do
not share.

2.     
Section 301(a)

Section
301(a) of the Act provides:

The provisions of sections 302 through 318 of this
title shall be interim mandatory safety standards applicable to all underground
coal mines until superseded in whole or in part by improved mandatory safety
standards promulgated by the Secretary under the provisions of section 101 of
this Act, and  shall be enforced in the same manner and to the same
extent as any mandatory safety standard promulgated under section 101 of this
Act. Any orders issued in the enforcement of the interim standards set
forth in this title shall be subject to review as provided in Title I of this
Act.

30 U.S.C. § 861(a) (emphasis
added). As its text indicates, the purpose of section 301(a) is to ensure that
Title III interim standards are enforced, and that such enforcement is
reviewed, to the same extent as any Title I mandatory standard.[11]
In practical terms, it provides that citations or orders may be issued for
violations of Title III interim mandatory standards, including, of course, for
violations of safeguard notices issued pursuant to Title III, and that such
citations and orders are reviewable by the Commission.[12]

Significantly,
section 301(a) states that the interim mandatory safety standards created by
Title III shall be “enforced” like the mandatory safety standards to be
promulgated under section 101 of the Act, and then says that orders issued in
the “enforcement” of the Title III interim standards shall be reviewable by the
Commission as provided in Title I of the Act (i.e., in accordance with section
105(d)). As noted above, a safeguard functions as a mine-specific mandatory
standard. It does not allege violative conduct. The creation of such a standard
– i.e., the issuance of the safeguard by an inspector – is not, by itself, the
“enforcement” of a standard which would be reviewable by the Commission
pursuant to section 301(a). Rather, the “enforcement” – and hence the
reviewable event – occurs at a later time when a citation or order is issued
because of a violation of the safeguard. As with citations and orders contested
pursuant to section 105(d), the safeguard does not function as both a standard
and a notice of violation of the standard. Put another way, the second sentence
of section 301(a) provides for Commission review of an order “issued in the
enforcement of the interim standards set forth” in Title III. Since the
issuance of a safeguard is the creation rather than the enforcement of a
standard, such issuance, by itself, is not reviewable by the Commission under
section 301(a).

This
conclusion is consistent with the Commission’s treatment of roof control plans
and ventilation plans, which are addressed in sections 302 and 303 of the Act. 30
U.S.C. §§ 862, 863. Like safeguard notices, roof control and ventilation plans are
mine-specific mandatory

standards authorized by a
provision of Title III. See Wolf Run, 659 F.3d at 1201-02; Wolf Run,

32 FMSHRC at 1233; Martin
County Coal Corp., 28 FMSHRC 247, 254–55 (May 2006). The Commission has
held that review of a disputed plan provision is not available until a citation
or order alleging a failure to comply with the provision – i.e., an enforcement
action of the type normally reviewable under Title I – has been issued. See,
e.g., Target Industries Inc., 23 FMSHRC 945, 973 n.2 (Sept. 2001) (citing Penn
Allegh Coal Co., 3 FMSHRC 2767, 2773 n.8 (Dec. 1981)). We conclude that the
same holds true for safeguard notices.  

As
an administrative agency created by statute, our jurisdiction is delineated by
specific provisions of the Act. No provision of the Act explicitly grants
jurisdiction to review safeguard notices. Given the nature of safeguard notices
as mine-specific mandatory standards, such jurisdiction cannot be read into
sections 105(d) or 301(a) of the Act, and jurisdiction of contests of section
103(k) orders is not analogous. Accordingly, we hold that the Act does not grant
jurisdiction to directly review safeguard notices.

C.   
Although the Commission has
no jurisdiction to review a safeguard notice by itself, jurisdiction attaches
once a citation, including a technical citation, is issued pursuant to such
notice.

Although
an operator may not obtain direct review of a safeguard notice, it is not
precluded from challenging such a notice. Review is available through a
challenge to a subsequent citation alleging a violation of the safeguard notice
at issue. See SOCCO II,      14 FMSHRC at 14 (Jan. 1992); Wolf Run,
659 F.3d at 1202-03.

Pocahontas challenges
the adequacy of the existing procedure. Pocahontas argues that without the
ability to obtain direct review of a safeguard notice, operators may have to
expend significant time and resources complying with a potentially invalid
notice while awaiting an opportunity to challenge it through a related
citation. While we recognize that safeguard notices may remain in effect for
some time before a citation is issued, we find that the availability of
technical citations resolves this concern. Technical citations have long been
the accepted method for challenging mine-specific mandatory standards issued
pursuant to Title III. See, e.g., Wolf Run, 32 FMSHRC at 1240; C.W. Mining Co., 15
FMSHRC 1559, 1564 (June 1993) (ALJ); Jim Walter Res., 12 FMSHRC 1384,
1388 (July 1990) (ALJ); see also Contest of Mine Approval Actions, PPM V.G-4. In
2014, MSHA announced that “technical citation procedures
similar to those used in the context of roof control, ventilation, and
emergency response plans”[13]
are available for safeguard notices as well. PPL No. 14-V-02. The technical
citation process gives operators the opportunity to request the issuance of a nominal
citation based on momentary noncompliance. This process allows operators to timely
obtain review of a safeguard notice without endangering miner safety or risking
significant economic harm.[14]

Pocahontas also argues that the existing review procedure does not provide
a sufficient “check and balance” against the lack of notice-and-comment
rulemaking for safeguard notices. It claims that direct post-issuance review is
necessary to counterbalance operators’ lack of pre-issuance involvement in the
creation of these mine-specific mandatory standards.

We disagree. Congress chose not to subject safeguard notices to the
notice-and-comment rulemaking required for mandatory standards issued pursuant
to Title I. See Wolf Run, 659
F.3d at 1202-03. The D.C. Circuit in Wolf Run found concerns regarding lack
of pre-enforcement review to be “overstated,” noting that the Commission has “interpreted
the criteria [for a valid safeguard notice] so as to ensure that an operator
has adequate notice of what safeguard is required.” Id. (citations
omitted). As the D.C. Circuit affirmed in Wolf Run, an operator can “seek
meaningful review” of a safeguard notice in a subsequent citation proceeding. Id.

We conclude
that the Mine Act does not grant the Commission the authority to directly
review the validity of safeguard notices, and that the existing method of
indirect review through subsequent related citations, including technical
citations, is adequate.

IV.

Conclusion

For the reasons set forth herein, we
conclude that the Commission lacks jurisdiction to review a direct challenge to
a safeguard notice independent of a related citation alleging a violation of
that safeguard notice. Accordingly, we affirm the Judge’s Order dismissing the
five notices of contest at issue for lack of jurisdiction.[15]

/s/
Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Althen,
dissenting:

A
safeguard is a self-executing command issued by an individual inspector. It
requires the operator to institute specific mining practices. The Department of
Labor’s Mine Safety and Health Administration (“MSHA”) enforces compliance with
the command through issuance of citations and imposition of civil penalties. I
disagree with the majority’s abdication of the Commission’s jurisdiction to
review safeguards until and unless the operator disobeys the inspector’s order.
Therefore, I respectfully dissent.

DISCUSSION

A.        Jurisdiction under Title I of the Mine Act

Title I of the
Mine Act provides MSHA with a variety of tools to achieve miner safety and for
enforcement of the Mine Act and the regulations issued under it. These
processes include section 103(k) (control orders after accidents), section 104
(citations and orders), and section 107 (imminent danger orders). See 30
U.S.C. §§ 813(k), 814, 817. In turn, Title I provides the Federal Mine Safety
and Health Commission (“Commission”) jurisdiction to review these enforcement
actions.[16]

For some enforcement actions, the Mine Act expressly
provides Commission jurisdiction. For example, section 105(d) explicitly grants
the Commission jurisdiction, inter alia, to hear contests by operators
or miners of citations and orders issued under section 104. Separately, section
107 expressly gives the Commission jurisdiction to review imminent danger
orders. Section 111 gives the Commission jurisdiction to require compensation for
miners. See 30 U.S.C. §§ 815(d), 817, 821.

Other
commands (orders) reviewable by the Commission are not expressly included
within these specific jurisdictional grants. The Commission and courts have
read the legislative history of the Act, the limited jurisdiction granted to federal
courts in mine safety matters, and the broad review authority of the Commission
and have found Commission jurisdiction for review.

For
example, as noted above, section 103(k) permits MSHA to issue control orders. The
Mine Act, including section 105(d), does not expressly grant the Commission
jurisdiction to review such orders. However, citing the legislative history of
the Act, the legislative scheme, and the specialized authority of the
Commission, circuit courts of appeal have affirmed the Commission’s
jurisdiction over such orders. Am. Coal Co. v. U.S. Dep’t of Labor, 639
F.2d 659, 660-62 (10th Cir. 1981); see also Pattison Sand Co., LLC v. FMSHRC,
688 F.3d 507, 516 (8th Cir. 2012).

Within
the last six months, in Jim Walter Resources, Inc., the Commission
reviewed a section 103(j) order, invalidating it because the order exceeded
MSHA’s statutory authority.   37 FMSHRC 1868, 1870 (Sept. 2015). We then upheld
a section 103(k) order that imposed affirmative duties upon the operator
including mandatory training of all miners on ignition issues. Id. at
1870-73.[17]

Consequently, it
is plain that Title I broadly grants the Commission jurisdiction to review
orders both through explicit provisions and through reliance upon the
specialized knowledge and authority of the Commission to review orders issued
by MSHA. The majority’s decision does not
provide but rather denies the important right to immediate judicial review of
binding agency orders having immediate impact upon the citizen’s actions.[18]

B.        Jurisdiction under Title III of the Mine Act

Title I provides
for the development, promulgation, revision, and judicial review of mandatory
safety and health standards. Titles II and III retained certain existing
mandatory health (Title II) and safety (Title III) standards. These interim
standards initially were included in the Coal Mine Health and Safety Act of
1969. The sections of Title III relevant to this case – sections 301(a) and
314(b) – remain unchanged from 1969 until today.

Section
301(a) provides:

The provisions of sections 302 through 318 of this
title shall be interim mandatory safety standards applicable to all underground
coal mines until superseded in whole or in part by improved mandatory safety
standards promulgated by the Secretary under the
provisions of section 101 of this Act, and  shall be
enforced in the same manner and to the same extent as any mandatory safety
standard promulgated under section 101 of this Act.
Any orders issued in the enforcement of the interim standards set
forth in this title shall be subject to review as provided in Title I of this
Act.

30 U.S.C. § 861(a) (emphasis added).

By
its plain terms, section 301(a) allows operators affected by any order issued
in implementing the standards of Title III to challenge such order just as they
may challenge orders implementing the provisions of Title I. Title III does not
permit challenges to the validity of the interim mandatory standards
themselves. The purpose of section 301(a), therefore, is to establish a review
mechanism for later agency actions enforcing the interim standards. Congress
ensured that actions of inspectors enforcing the interim standards of Title III
would be subject to the same type of review as actions by inspectors enforcing
mandatory standards promulgated under Title I.

Section 314(b)
grants inspectors the authority to enforce the mandatory hoisting and mantrip
standards of section 314 through issuance of safeguards to minimize
transportation hazards. It states that “[o]ther safeguards adequate, in the
judgement of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials shall be provided.” 30
U.S.C. § 874(b).

Section 301(a)
could not be more plain and direct. Orders issued in enforcement of the Title
III interim mandatory standards are subject to review just as enforcement
actions under Title I of the Mine Act are subject to review. Safeguards are
orders enforcing section 314(b), and are thus subject to challenge before the
Commission.

C.        Application of the Commission’s Jurisdiction

This case involves five safeguards. All of the
challenged safeguards are commands unilaterally issued by inspectors requiring
specific actions by the operator. For example, one of the safeguards at issue
in this case, No. 9002751, provides:

This is [a] notice to provide safeguard requiring [the] operator
to ensure that all track D-rails are placed on track rails when track equipment
is parked in an inclined area to prevent a possible run away from track
equipment. The track D-rail was not placed on the track rail on the #2 inclined
track spur while a loaded track rail car was parked in spur and not adequately
secured to prevent a run away.

Docket No. WEVA 2014-647-R,
Notice of Contest, Ex. A. Clearly,
this is a unilaterally issued order enforcing the interim mandatory safety standard
of section 314 of the Mine Act.

As defined in the Administrative Procedure Act
(“APA”), an agency “order” is “the whole or a part of a final disposition, whether affirmative,
negative, injunctive, or declaratory in form, of an agency in a matter other
than rule making but including licensing.” 5 U.S.C.       § 551(6).[19] Separately, in the absence of a
statutory or regulatory definition or technical usage, the Commission turns to
dictionaries for a term’s ordinary meaning. See Newmont USA Ltd., 37
FMSHRC 499, 503 (March 2015).

Black’s Law Dictionary (10th ed. 2014) defines an “order” as: “1. A command, direction, or instruction. See MANDATE (1). 2. A
written direction or command delivered by a government official, esp[ecially] a
court or judge. The word generally embraces final decrees as well as
interlocutory directions or commands.” Lay dictionaries define an “order” as
“an authoritative direction, or instruction; command; mandate” (Random House
Webster’s Unabridged Dictionary 1362 (2d ed. 1998)), or “an authoritative
mandate, usu[ually] from a superior to a subordinate.” Webster's Third New
Int'l Dictionary Unabridged 1588
(1993). Each of the Mine Act safeguards at issue here bears all the hallmarks
of an “order.”

First, Safeguard No. 9002751 reads like an
order. It sets forth a concise and direct command. The operator must follow the
command “requiring [the] operator to ensure that all track D-rails are placed
on track rails when
track equipment is parked in an inclined area.” Further,
it is final and non-appealable within MSHA.

Second, MSHA issued Safeguard No. 9002751 like
an order. An MSHA inspector issued it after having viewed conditions at the
mine and found a condition he believed created a hazard. He then unilaterally
demanded specified action by the operator. There was no requirement that the
inspector engage in any discussion whatsoever with the operator’s
representative before doing so. Certainly, there were no “negotiations” over
issuance of the safeguard.

Third, Safeguard No. 9002751 operates like an
order. Failure to comply with it results in issuance of a citation and
assessment of a civil penalty. The safeguard, itself, does not cite violative
practices or conditions. Instead, it asserts MSHA authority to order specific
actions by the operator to comply with section 314 of the Mine Act. A safeguard
represents MSHA taking control of specific conditions or practices at a mine
and enforcing the interim mandatory standard by imposing operational
constraints and/or obligations upon the operator regarding such conditions or
practices. Such constraints may well be exercises of an inspector’s authority
under section 314(b). However, that does not place such orders beyond immediate
review by the Commission.

A safeguard reads like an order, issues like an order, and
acts like an order – it is an order. That being the case, section 301(a) and
Title I confer jurisdiction upon the Commission to review safeguards.

A safeguard is so clearly an order that the majority
struggles in attempting to define what form of legal instrument it is, other
than an order. At first, they pass safeguards off as a form of “notice” that
simply “informs the mine operator about
conduct that is mandated or prohibited.” Slip op. at 1. This is the majority’s
first tacit recognition that a safeguard has the characteristics of an order. The
“information” is a unilateral command by an inspector that “mandates” or
“prohibits” conduct. It “notifies” the operator that it must do as the inspector
commands or pay a civil penalty – that is, an order.

A
few pages later, however, the majority implicitly reduces safeguards to the
ambiguous status of “issuances,” theorizing that
“[s]afeguard notices are not citations or orders issued pursuant to
section 104, but rather issuances that establish safeguards pursuant to section
314(b).” Id. at 5. So, safeguards are deemed simple “issuances.”[20]

Later
in the opinion, however, the majority dances to the other end of the legal
spectrum to declare that safeguards actually “are mandatory standards which
require an operator to implement protective measures” (slip op. at 6), and
states “[g]iven the nature of safeguard notices as mine-specific mandatory
standards . . . .” Id. at 8.[21]
Here, the majority would find safeguards are mandatory safety standards issued
by individual inspectors, but obviously without notice and comment and without
any opportunity for judicial review before their enforcement – a notion wholly
contrary to the right to immediate judicial review of mandatory standards.[22]

The
majority recognizes that safeguards implement the authority granted to the
Secretary to enforce the interim mandatory standards. Slip op. at 5. A
safeguard implements a mandatory safety standard by an inspector commanding an
operator to take specified actions in order to comply with the mandatory safety
standard. It is a final agency action and has an immediate and concrete impact
upon the operator. The result of a failure to obey the command is a citation
and penalty. So, by recognizing that a safeguard implements a mandatory safety
standard with a civil penalty for noncompliance, the majority recognizes that a
safeguard is the quintessential type of command that constitutes an order that
is subject to review by the Commission.

Having recognized that a safeguard has the attributes of an
order, the majority implicitly further recognizes that a safeguard is an order
by attempting to distinguish safeguard orders from 103(k) orders. Slip op. at 6.
Stating that a safeguard is a different kind of “order” does not make it not an
“order.” It attempts to make it a kind of order over which the Commission has
no jurisdiction. However, for purposes of jurisdiction, section 103(k) orders
and safeguard orders are indistinguishable.

Obviously, my difference with my colleagues is more than
legal terminology. Our difference involves the right of citizens to
pre-enforcement review of government commands issued by individual federal
agents. I would find a safeguard is the type of action that may be reviewed
immediately. It commands specific and immediate action by a private citizen
enforced by penalties. My colleagues think that, in Title III, Congress gave
individual inspectors the right to go beyond enforcement and actually issue
mandatory standards. Under that rubric, a safeguard does not enforce Title III,
but rather creates a uniquely unreviewable mandatory safety standard – a safety
standard that is unreviewable unless and until a citizen violates the
inspector’s command. Slip op. at 6-7. I do not know of any provisions in Title
I that allow individual inspectors to unilaterally issue unreviewable mandatory
safety standards to operators, and I do not think we should interpret Title III
to allow such action. My colleagues recognize all the underpinnings for
Commission review but do not take the logical final step and accept our
jurisdiction.

The Mine Act does not expressly grant the Commission
jurisdiction to review section 103(k) orders. However, as explained above, the
Commission and circuit courts of appeal have recognized that Congress created
the Commission as a specialized agency with broad powers to review MSHA
enforcement actions. In other words, the Commission is the agency designated by
Congress to review MSHA enforcement actions, and we have jurisdiction to review
section 103(k) orders (American Coal
Co., supra; Pattison Sand,
supra). Therefore, Commission
jurisdiction is not strictly limited by the wording of section 105(d).

The majority argues that safeguards are not “analogous” to a
section 103(k) order, saying that section 103(k) orders have a “similarity” to
withdrawal orders. Slip op. at 6. The indisputable fact, however, is that
section 103(k) orders are not always withdrawal orders and may be mandatory in
nature. In Jim Walter, the Commission adjudicated a section
103(k) order requiring all miners to take
an hour-long training course on ignition safety and prevention before they
could enter the mine. 37 FMSHRC at 1871. Clearly, this was a mandatory command
(an order) to take a set of prescribed actions. From a legal standpoint, that
order is identical in nature to a safeguard. An inspector issues both section
103(k) and safeguard orders unilaterally, and both dictate actions that the
operator must take. Indeed, a safeguard is more obviously an “order,” as it
commands the operator to take specific actions to comply with the interim standard
of section 314(b) of the Mine Act. Despite its protestations, the majority
cannot consistently maintain that the Commission has jurisdiction to review
mandatory directives issued under section 103(k) but cannot review safeguard
orders issued by individual inspectors. We may review section 103(k) orders,
and we may review safeguard orders.[23]

Finally,
the majority asserts that the issuance of a safeguard resembles MSHA’s role in
roof control and ventilation plan disputes. Slip op. at 8. Because section
301(a) of the Mine Act expressly provides for enforcement of safeguard orders
in accordance with Title I, this argument is irrelevant.

In
any event, approval of roof control and ventilation plans is markedly and
substantively different from the immediate issuance of a final binding order by
a lone inspector on his personal initiative. There are substantive differences
between obtaining the statutorily prerequisite approval of a plan and the
unilateral issuance of a binding command through a safeguard.

The
Mine Act expressly places a duty upon the operator to devise a plan that is
acceptable to MSHA. The operator has the obligation to develop a plan
acceptable to MSHA and MSHA has discretion in approving or rejecting the
proffered plan. Further, the plan approval process involves negotiations,
proposals, and counter-proposals between MSHA and the operator. In a legal
sense, MSHA rejects insufficient plans proposed by the operator and informs the
operator of changes that would satisfy MSHA. That does not foreclose the
operator from submitting further variations of the plan in an attempt to win
MSHA’s approval.

If
the operator refuses to satisfy MSHA’s right to approve plans, it may challenge
MSHA’s disapproval as an abuse of discretion. The Mine Act places the burden
upon the operator to satisfy MSHA or show an abuse of discretion. If the
operator fails to obtain plan approval, it is not violating an order issued by
MSHA. It is disobeying a requirement of the Mine Act to obtain pre-approval
from MSHA.

Indeed,
the United States Court of Appeals for the District of Columbia Circuit
recently emphasized the “notice and comment” aspect of the plan approval
process in sustaining the Commission’s standard of review for plan approval
disputes. In Prairie State Generating Co. LLC
v. Sec’y of Labor, the court stated:

The statutory requirements of negotiation between
the Secretary and an operator in the development of suitable, mine-specific plans, and the Mine Act’s provision for miners’ input during the plan-approval process, can be thought to play a role in the development of mine-specific plans akin to that of notice and comment in formal administrative rulemaking. Mine operators
receive written notice of the reasoning and bases
for the Secretary’s initial plan-suitability determinations and have multiple opportunities to respond with arguments and supplemental data. Carbon County, 7 FMSHRC at 1370-71; 30 C.F.R. §§ 75.220,
75.370. Plan negotiations thus may reasonably be characterized as serving the same interests
as notice and comment, albeit less formally:
notice to affected
parties, opportunities for such parties to develop
the record by submitting factual
and legal support,
and improvement of the agency’s
decisionmaking. See, e.g., Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).

792 F.3d
82, 90-91 (D.C. Cir. 2015). None of this
occurs before issuance of a safeguard. With a safeguard, MSHA does not define a
safety hazard and ask for a plan from the operator to deal with the issue. There
is no advance written notice of the bases for the inspector’s intention to issue
a safeguard; there is no, let alone multiple, opportunities to convince any
MSHA official that the safeguard is unnecessary, too broad, ambiguous, etc. In
sum, the operator does not fail to provide a suitable plan to MSHA; an MSHA
inspector unilaterally imposes an immediate obligation upon the operator.[24]

It
is not tenable to contend that an inspector imposing mandatory obligations upon
an operator is not taking a discrete final agency action or to assert that such
action has any attribute of rulemaking. A safeguard has only the legal
attributes of an order. The inspector comes; the inspector sees; the inspector
commands. In short, the plan approval process most certainly is not a template
for safeguard orders.

Conclusion

Our
system of justice does not favor issuance of binding governmental commands
without a right to pre-enforcement challenge. The right to challenge government
mandates is fundamental. Here, immediate
jurisdiction is consistent with Title I’s provision of review of government-mandated
actions and with section 301(a)’s provision of jurisdiction over orders
enforcing Title III standards. Such jurisdiction also is consistent with the
broad authority of the Commission recognized by the Commission and circuit
courts of appeal. I respectfully dissent.

/s/ William I. Althen

William I. Althen, Commissioner

[1]
Section 314(b) of the Act states that “[o]ther safeguards adequate, in the
judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation  of men and materials shall be provided.” 30
U.S.C. § 874(b).

[2] After the PPL was issued, the Secretary notified Pocahontas
of the availability of a technical citation. On October 16, 2014, counsel for
Pocahontas stated that Pocahontas was not interested in receiving technical
citations for the safeguard notices at issue.

[3] Section 105(d) states that if an operator contests
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 . . .
the Commission shall afford an opportunity for a hearing.” 30 U.S.C. § 815(d).

[4] Where the Commission has found broad authority to
consider a wide range of issues,  it has been in the service of fully resolving
a dispute for which jurisdiction otherwise properly exists. Thus our
colleague’s reliance on Drummond Coal Co., 14 FMSHRC 661 (May 1992),
slip op. at 12 n.2, is misplaced. In that civil penalty proceeding, the
Commission held that it could review the validity of an MSHA Program Policy
Letter where MSHA had relied on the letter to calculate a civil penalty which
had been properly contested pursuant to section 105(d). Id. at 673-74. The
Commission reasoned that several of the Mine Act’s provisions confer subject
matter jurisdiction by establishing specific enforcement and contest
proceedings over which the Commission has jurisdiction. We explained that once
that jurisdiction attaches, the Commission has a range of adjudicatory powers
to consider issues and to “dispose fully of cases committed to
Commission jurisdiction.” Id. at 674. Consequently, in contest
proceedings where there is clearly jurisdiction, the Secretary’s less formal
regulatory pronouncements fall within the Commission’s jurisdictional purview. See
also Kaiser Coal, 10 FMSHRC at 1170-71 (holding that the Commission lacked
jurisdiction over an application for declaratory relief when the related
contest proceeding had been withdrawn, and that Mine Act language establishing
the Commission “is not an invitation from Congress to legislate for ourselves
virtually unlimited jurisdiction over ‘any proceeding’”).

[5] Section 105(d), 30 U.S.C. § 815(d), provides for the
contest of citations or orders, or the contest of civil penalties proposed for
such violations; section 105(b)(2), 30 U.S.C. § 815(b)(2), provides for
applications for temporary relief from orders issued pursuant to section 104;
section 107(e), 30 U.S.C. § 817(e), provides for contests of imminent danger
orders of withdrawal; section 105(c), 30 U.S.C. § 815(c), provides for
complaints of discrimination; and section 111, 30 U.S.C. § 821, provides for
complaints for compensation.

[6] But see discussion of section 103(k) of the Mine Act,
infra.

[7] Other provisions of the Act such as section 105(c),
30 U.S.C. § 815(c), and section 107(e), 30 U.S.C. § 817(e), narrowly authorize
Commission review of actions taken pursuant to those sections and need not be
discussed further.

[8] The statutory language is reflected in Commission
Procedural Rule 20(a)(1), which states that an operator may contest: “(i) A
citation or an order issued under section 104 of the Act, (ii) A modification
of a citation or an order issued under section 104 of the Act; and (iii) The
reasonableness of the length of time fixed for abatement in a citation or
modification thereof issued under section 104 of the Act.” 29 C.F.R. §
2700.20(a)(1). Safeguard notices are not included.

[9] Although our colleague argues that safeguard notices
fall within the general dictionary definition of an “order,” the relevant
question here is whether safeguard notices are orders of the specific type
that are reviewable under section 105(d) of the Mine Act, i.e., orders that
allege violative conduct and generally require withdrawal of miners. As
discussed above, we find that they are not.

[10] Although the Secretary correctly asserts that
Pocahontas did not raise the section 103(k) argument prior to its reply brief,
we believe that this example of the Commission’s jurisdictional authority is
sufficiently related as part of the larger reading of the Act’s structure and
language, and therefore should be considered. See Oak Grove Res., LLC,
33 FMSHRC 2657, 2664 (Nov. 2011). Moreover, the argument is too important not
to be considered.

[11] Section 301(a) appeared in the Federal Coal Mine
Health and Safety Act of 1969 (“Coal Act”). The legislative history of the Coal
Act confirms that “such implementation actions, conditions, or requirements, as
well as any actions taken or instructions issued by an inspector, will be
enforced in the same manner as the standards themselves.” Senate Conference
Report (Dec. 18, 1969), reprinted in Senate Subcomm. On Labor, Comm. On
Labor and Pub. Welfare, 94th Cong., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 1609 (1975).

[12] The language of section 301(a) was carried over
without modification from the 1969 Coal Act, and the Coal Act did not provide
for review of “citations.” Pub. L. 91-173, 83 Stat. 753-55, 765 (§§ 105,
301(a)). Accordingly, despite the omission of the word “citation,” we read
section 301(a) to provide for the review of the types of enforcement actions
available for violations of Title I mandatory standards, which under the 1977
Mine Act includes section 104 citations. 30 U.S.C. § 104(a).

[13] See, e.g., Prairie State Generating Co. LLC v.
Sec’y of Labor, 792 F.3d 82 (D.C. Cir. 2015) (discussing the technical
citation process for roof and ventilation plans); Mach Mining, LLC v.
Sec’y of Labor, 728 F.3d 643, 655-56 (7th Cir. 2013) (discussing the use of
technical violations when an operator seeks review of an impasse in the
development of a ventilation plan).

[14] Pocahontas
claims that technical citations are insufficient because they are granted at
MSHA’s discretion. We agree that, in order for technical citations to resolve
the concerns raised by the potential for delay, an operator must be able to
rely on their availability. Indeed, if a procedure for technical violations did
not exist, there could be a significant due process issue. However, we are
reassured by the long accepted use of technical citations in other Title III
contexts, as well as the use of “should” (rather than “may”) in MSHA’s policy
statement. PPL No. 14-V-02. We are also unpersuaded by Pocahontas’ stated
concern that an operator who requests a technical citation may instead be
issued a serious non-technical citation.

[15] Dismissal of these notices of contest does not
preclude Pocahontas from disputing the validity of the safeguard notices in the
course of litigating any subsequent related citation properly challenged and
brought before the Commission.

[16] The Mine Act provides specific procedures for notice
and public comment for the promulgation of mandatory health and safety
standards. 30 U.S.C. § 811. Any person adversely affected by a mandatory safety
standard may seek judicial review of the standard within sixty days of
promulgation. Such review may occur only in the United States Court of Appeals for the District of Columbia
Circuit or the circuit where the petitioning person resides or has his
principal place of business. Id. Thus, the Mine Act expressly
restricts review of mandatory safety standards to federal circuit courts of
appeal. See Nat’l Mining Ass’n v. Sec’y of Labor, 763 F.3d 627,
631 (6th Cir. 2014). Federal district courts have limited jurisdiction under
sections 108 and 110 of the Mine Act. Section 108 identifies specific
circumstances not relevant here in which MSHA may institute a civil action in
district courts, and section 110(j) authorizes actions in district courts to
collect penalties imposed under the Act. 30 U.S.C. §§ 818, 820(j).

[17]
Further demonstrating Congress’ grant of broad powers to the Commission, the
Commission has found that it has the authority to review an MSHA Program Policy
Letter. Drummond Co., 14 FMSHRC 661, 673-78 (May 1992). Relying on an
expansive reading of the Mine Act, a court has held that the Commission can
also entertain requests for declaratory relief. Climax Molybdenum Co. v.
Sec’y of Labor, 703 F.2d 447, 452
(10th Cir. 1983). As the Commission
stated in Drummond:

The reason the Commission was created by Congress and equipped
with broad remedial powers and policy jurisdiction was to assure due process
protection under the statute and, hence, to enhance public confidence in the
mine safety and health program. Addressing claims of arbitrary enforcement by
the Secretary is at the heart of that adjudicative role.

14 FMSHRC at 675
(citation omitted).

[18] The procedure adopted by MSHA for issuance of
“technical” citations is sufficient to alleviate constitutional concerns. However,
those procedures do not address the jurisdiction of the Commission as an agency
independent from MSHA to review orders issued by MSHA – a matter of overarching
importance in the scheme of federal agency jurisprudence.

[19] The provisions of the APA do not apply generally to
Commission proceedings. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d
151, 159 (D.C. Cir. 2006). However, that does not mean that the principles underlying
the APA are inapplicable. Id. The Commission has referenced the
definitions in the APA in defining matters under the Mine Act. See Tarmann
v. Int’l Salt Co., 12 FMSHC 1, 2 n.1 (Jan. 1990).

[20] This case illustrates the outsized importance MSHA may
seek to attach to the name given to issuances and decrees. Had MSHA properly
entitled safeguards as “Safeguard Orders,” I am confident the majority would
agree that we have jurisdiction to review such orders. By choosing to instead
call them “Safeguard Notices,” the Secretary seeks to have safeguard orders
treated as mere “notices” or, according to the majority, even more ambiguously,
“issuances.”  An enforceable demand, however, is not a mere notice or issuance;
if a safeguard is a notice, it is one mandating specific conduct backed by a
penalty for failure to comply. The operator for the first time is commanded to
take or refrain from taking specified actions. In substance, a safeguard is an
order, not a notice. “Beware lest you lose the substance by grasping at the
shadow.” Aesop, The Dog and the Shadow, in The Harvard Classics Vol.
17 Part 1 (Charles  W. Eliot, ed., P.F. Collier & Son 1909-14,
Bartleby.com online ed. 2001) (c. 6th Century BCE).

[21]
This characterization of safeguards is a departure from the Commission’s prior
care in characterizing safeguards. The Commission had previously referred to
safeguards as “in effect” mandatory safety standards. Southern Ohio Coal Co.,
14 FMSHRC 1,8 (Jan. 1992) (“section 314(b) extends authority to the Secretary
to create on a mine-by-mine basis what are, in effect, mandatory standards,
without the formalities of rulemaking”); Southern Ohio Coal Co., 7
FMSHRC 509, 512 (Apr. 1985). Such wording avoids an obvious problem: the
Mine Act does not permit inspectors to establish mandatory safety standards. Congress
expressly stated in Title III of the Mine Act that the Interim III standards as
written would exist until “superseded in whole or in part by improved mandatory
safety standards promulgated by the Secretary under the provisions of section
101 of this Act.” 30 U.S.C. § 861(a).

[22] The Supreme Court has repeatedly stressed the
fundamental importance of the right to review of government mandates that have
a direct and immediate impact upon a private person’s rights. As the Supreme
Court has emphasized, “only upon a showing of
‘clear and convincing evidence’ of a contrary legislative intent should the
courts restrict access to judicial review.” Abbott Laboratories v.
Gardner, 387 U.S. 136, 141 (1967), abrogated on other grounds by
Califano v. Sanders, 430 U.S.
99 (1977). Here, as in section
103(k), not only is there no evidence to support that Congress wished to deny
review of safeguard orders but instead section 301(a), legislative history, and
court cases demonstrate that Congress created the Commission to address MSHA
commands compelling an operator to take specific actions or to incur civil
penalties.

[23] The majority seeks to minimize and deflect the
importance of the Commission’s jurisdiction to review section 103(k) orders by
inferring that such orders are “withdrawal orders.” See slip op. at 6 (“That
section 103(k) orders are reviewable despite the lack of an explicit grant of
authority reflects their similarity to withdrawal orders reviewable under
section 105(d), a similarity which safeguard notices do not share.”). Certainly,
a command to provide mandatory training as issued in Jim Walters, supra,
has nothing in common with a withdrawal order. In any event, section 301(a) of
the Mine Act is a positive grant of jurisdiction to review safeguard orders
that enforce (i.e., implement) mandatory safeguards in the same manner as
orders issued under Title I.

[24]
In Elk Run Coal Co. v. U.S. Dep’t of Labor, 804 F. Supp. 2d 8
(D.D.C. 2011), the district court upheld the plan review process against a
claim of facial unconstitutionality. In so doing, the court found that the plan
approval process is a cooperative process and that, rather than MSHA compelling
action, the operator must obtain approval of a plan submitted by it. The
Secretary argued and the court accepted that MSHA’s refusal to adopt a plan
submitted by an operator does not constitute “final agency action.” In response
to operator complaints that it needed to commit a violation to obtain review,
the district court accepted the Secretary’s argument, finding that “[w]hile
these complaints may describe what Plaintiffs believe to be ‘programmatic’
deficiencies with MSHA’s ventilation-plan review-and-approval process, they do
not identify any discrete, final agency actions that this Court can review.” Id.
at 31.