Abuse of Discretion: MSHA’s Impermissible Use of 103(k) Orders

Abuse of
MSHA’s Impe

of 103(k

Energy & Minera
Annual

June 25-

Arthur M. Wolfson, Esquire

Three Gateway Center, Suite 1340
401 Liberty Avenue
Phone: 412-434-8055• Fax: 412-434-8062
[email protected]• www.jacksonkelly.com

Discretion:
ermissible Use
k) Orders

al Law Foundation
l Institute

-26, 2012

Section 103(k)

In the event of any accident occu
authorized representative of the Se
such orders as he deems appropriat
in the coal or other mine, and the op
approval of such representative, in
representatives, when feasible, of a
such mine or to recover the coal or
of such mine to normal.

30 U.S.C. § 813(k).

2

urring in a coal or other mine, an
ecretary, when present, may issue
te to insure the safety of any person
perator of such mine shall obtain the
consultation with appropriate State
any plan to recover any person in
other mine or return affected areas

103

MSHA circumvents the langua
103(j). Because of the langua
present”), MSHA has adopted
Order verbally over the telep
reported and then changing it u

3

3(j)

age of Section 103(k) by using
age of Section 103(k) (“when
d a policy of issuing a 103(j)
phone when an “accident” is
upon arrival at the mine.

Section 103(j) in relevant part states

In the event of any accident o
where rescue and recovery wor
authorized representative of th
action he deems appropriate to
he may, if he deems it appropria
and recovery activities in such m

4

s:

occurring in a coal or other mine,
rk is necessary, the Secretary or an
he Secretary shall take whatever

protect the life of any person, and
ate, supervise and direct the rescue
mine.

Program Po

When it is determined by the authori
appropriate to protect the life of any
that supervision and direction of resc
appropriate, an authorized represen
order over the phone, including initia
in the context of a mine emergency w
present at the mine.

**
Upon MSHA’s arrival on-site and foll
MSHA may modify the Section 103(j
reflect that MSHA is now proceeding
103(k) of the Mine Act. MSHA shoul
activities that are rescue or recovery
subsequent modification of the Secti

PPM at 18

5

olicy Manual

ized representative that an order is
person or to preserve evidence, or
cue and recovery activities is
ntative should issue a Section 103(j)
al instructions, as soon as possible
when he or she is not physically

**
lowing assessment of conditions,
j) order, including all instructions, to
g under the authority of Section
ld inform parties on-site that any
y related will be permitted through
ion 103(k) order.

An “accident” is a necessary pr

6

recondition to a 103(k) order.

• The term “accident” mus

•What is it?

• Compare – 107(a) immin

•Consol of Kentucky, 3
Jan. 2008).

•Jim Walter Resources
(ALJ Zielinski Nov. 20

7

st have a boundary.

nent danger orders

30 FMSHRC 1 (ALJ Melick
s, Inc., 29 FMSHRC 1043
007).

What is an

8

“accident”?

“Accident” is defined in Section

“includ[ing] a mine explosio
mine inundation, or injury to

30 U.S.C. § 802(k).

9

n 3 as:
on, mine ignition, mine fire, or
o, or death of, any person.”

In Aluminum Company of Ame
Comm. Sept. 1983) the Com
definition of “accident” appea
exhaustive or limited to the ide

10

erica, 15 FMSHRC 821 (Rev.
mmission determined that the
aring at Section 3(k) was not
entified events.

The Commission characteriz
events that pose an immed
require emergency action.” Alc

11

zed “accidents” as “sudden
diate hazard to miners and
coa, 15 FMSHRC at 1826.

The Commission concluded th
found at 30 C.F.R. § 50.2(h
“accidents” under Section 103(

12

hat the definition of “accident”
h) (the magic twelve) were
(k).

• Pattison Sand Company
• ALJ interpreted “ac
purpose of the Mine
injuries in a metal/non

• Revelation Energy LLC
• ALJ appeared to e
commonly accepted
applied it to a rock
causing no injuries

• Big Ridge Inc.
• ALJ rejected argumen
a 103(k) order is limit
recovery
• ALJ rejected argumen
individual at a mine, o
mine which has a reas
death

13

ccident” broadly to effectuate
Act to cover a roof fall with no

nmetal mine

expand further to include the
d definition of “accident” and

traveling off mine property but

nt that MSHA’s authority to issue
ted to events involving rescue or

nt that “accident” is death of
or an injury or entrapment at a
sonable potential to cause

Exam

Alcoa –mercury contamination

• Vacated

Pinnacle – 13 ppm CO in LW T
• Upheld

American Coal – smoldering co
• Park 50 case
• Smoke doesn’t equal fir
• Vacated

Pattison Sand
• Roof fall with no injuries
• Upheld 103(k)

14

mples

n
Tailgate
oal stockpile
re

s

Clintwood Elkhorn – Non-injur
• Vacated – no accident

Emerald – Non-injury Roof Fa
• Upheld

Prairie State – Inundation/Rain
• Part 50 case
• Upheld

Prairie State – Electrical Shoc
• In litigation

Signal Peak – Initial Fall in LW
• Part 50 case
• In litigation

15

ry Truck Rollover
all, but blocked travel
nstorm

ck
W Gob

Questionable Jurisdiction
• Barge Loading Facility

16

Sco

A 103(k) order should only en
mine critical to any investigat
reasonably be concern for m
“affected areas of such mine.”

• Not how it always works

• Jim Walter Resources

• Secretary has “plenary a
• Included reference to pa

17

ope

ncompass those areas of the
tion and in which there could
miners’ safety, in particular,
”

s

authority”
ast ignitions

• MSHA expressly advises its ins
of 103(k) orders at accident
“Accident/Illness Investigations P

In instances where any accident
injury to a miner, a § 103(k) ord
mine where the inspector believe
practice related to the acciden
instances it will be obvious that th
accident site and, therefore, the
apply to areas other than the acci

MSHA “Accident/Illness Investig
No. PH00-I-5, November 2000, at

• Main extend beyond area where

• Roof control
• Equipment accident

18

spectors regarding the imposition
sites. In this regard, MSHA’s
Procedures” Handbook states:

has resulted in death or serious
der shall include all areas of the
es that a hazardous condition or
nt is likely to exist. In some
he conditions are peculiar to the

Section 103(k) order would not
ident site.

gations Procedures” Handbook,
t 5.

e accident was

Terminatio
Pla

MSHA may use the 103(k) or
meet requirements that exceed

19

on of 103(k)
an

rder to require an operator to
d the standards.

Clintwood Elkhorn
• Signs
• Not shifting gears is policy
• GVWR of each truck
• Shut down plant on impasse
• MSHA’s attempts to regulate w
reason judge found MSHA acted

Performance Coal – UBB investigation
• Photographs
• Electronic mapping
• Rockdust samples
• Upheld

Emerald Coal Resources – Plan req
(rehabilitation of fall areas)

Jim Walter Resources – Requirement of tra

Adoption of Plans
• Clintwood Elkhorn
• Pattison Sand
• Emerald Coal Resources

Suspected Mine Fires – MSHA dictates 4%

20

when it had no authority was part of the
d arbitrarily

quired despite provisions in § 75.212
aining

% O2 and 100 days.

Enforce

MSHA has adopted the practice
such plan provisions in roof contr

Pattison Sand Company LLC
sandstone mine to adopt roof co
107(a) order. Then issued a 103
changes in plan.

• Not the only instance in M

• “Absent bad faith or arbitr
the discretion to insist
provisions as a condition
Sand

21

eability

e of requiring the operator to put
rol ventilation or training plans.

– MSHA forced underground
ontrol plan in context of Section
3(k) after another fall and forced

Metal/NonMetal
rary action, the Secretary retains
upon the inclusion of specific
of the plan’s approval.” Pattison

Contesting

The right to contest 103(k) or
has been consistently uphe
Associated Coal Corp., 2 F
Comm. Sept. 1980).

• Issuance
• Modifications
• 30 Days from issuance
• Difficult position for oper

22

g an Order

rders before the Commission
eld beginning with Eastern
FMSHRC 2467, 2471 (Rev.

or modification
rator/judge

Expedited

Yes – Maybe
If the mine is shut down, it

23

d Hearings

is much more likely

Tempora

• Performance Coal
• Commission – operator
an accident investigatio
• DC Circuit reversed

24

ary Relief

r wants ALJ to “micromanage”
on

MSHA argues that the Com
authority to modify scope of S
Sand Company LLC

• Not correct

25

mmission does not have the
Section 103(k) order. Pattison