March 19, 2012
MSHA’s expansive use of Section 103(k) orders is a derogation of the purpose and intent of an enforcement tool
In the last year, the Federal Mine Safety and Health Administration has shut down several mines and imposed significant operating costs on mine operators by expanding the scope and use of Section 103(k) orders. This troubling trend, which has been compounded by several recent administrative law judge (ALJ) decisions, has serious implications for mine operators. Operators have been forced to shut down production indefinitely (affecting the entire mine) even where no discernible event occurred or where only a particular area of the mine was affected. While 103(k) orders can produce often paralyzing consequences for mine operators, being proactive in the early onset helps to effectively manage the situation.
Section 103(k) reads as follows:
In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate state representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal. 30 U.S.C. § 813(k)
Courts have held that a necessary precondition to the issuance of a 103(k) order is an accident. The term “accident” is defined at Section 3(k) of the Act as “includ[ing] a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k). The Federal Mine Safety and Health Review Commission (FMSHRC) expanded this definition by holding that Section 3(k) is not exhaustive and that the use of the word “including” was expansive rather than limiting. Aluminum Company of America (Alcoa) 15 FMSHRC 1821, 1824 (Rev. Comm. September 1993). ALJs have also relied upon other sections of the Act and the accompanying regulations to determine the instances in which a 103(k) order will be upheld. The definition of “accident” as appearing at 30 CFR § 50.2(h) has been applied to uphold the validity of a 103(k) order. See, e.g., Homestake Mining Co., 4 FMSHRC 1829, 1839 (ALJ Vail October 1982). And at least one other ALJ has made reference to 30 U.S.C. § 813(d), to uphold a 103(k) order based upon facts which would not have been construed as an “accident” according to Section 103(k). See, Emerald Coal Resources, LP, 30 FMSHRC 122, 124 [(ALJ Zielinski January 2008) concluding that an unplanned roof fall was an accident under the Act].
Recently, MSHA has expanded this already liberal application of the term “accident” and, in at least two instances, issued 103(k) orders where no discernible event, let alone “accident,” occurred.
In Pinnacle Mining, 2011 WL 5894153 (ALJ McCarthy September 2011), MSHA merely suspected that heating or combustion was occurring because elevated carbon monoxide levels were detected in a worked out portion of an underground mine. MSHA offered no conclusive proof of the occurrence of any event, let alone one so considered an “accident,” but seized control of the mine by way of a 103(k) order. Despite this lack of proof and in an effort to lift the order, the operator nonetheless submitted a plan to MSHA to re-ventilate the affected areas, perform examinations, and requested to resume operations if no abnormal conditions were found. MSHA denied this plan and demanded the mine remain idle for 100 days. The operator contested the propriety of the 103(k) order, but the ALJ upheld the order, stating that MSHA has “plenary power” and “complete control” to issue post-accident orders for the purpose of protection and safety of all miners.
Likewise, MSHA seized operations at a mine where no demonstrable injury or condition existed. Miners in alleged incidents occurring months apart reported that they “thought” they suffered electrical shocks while handling equipment. Although there were no physical signs of electrical shock, MSHA evaluated the claims and issued a 103(k) order withdrawing miners from the entire mine. MSHA also ordered the operator to replace all trailing cables in the mine. The operator and MSHA tested the equipment and cable after each claim, and neither could effectively determine that any issues existed. Despite this, however, MSHA maintained the issuance of the 103(k) order and forced the operator to comply with its broad demands.
While these two examples illustrate MSHA’s proclivity for issuing 103(k) orders even where it cannot be determined an event occurred; it also demonstrates MSHA’s expansive application of 103(k) orders to areas or equipment not necessarily affected by an event. For example, where tangible events occur such as roof falls affecting only specific areas of a mine, MSHA commonly applies Section 103(k) orders to the entire mine, and ALJs have upheld this overbroad application. See e.g, Pattison Sand Co., LLC, 2011 WL 6880702 (ALJ McCarthy December 2011); Big Ridge, Inc., Docket Nos. LAKE 2011-699, 2011-700 (ALJ Lewis Jan. 20, 2012).
With such a broad and expansive application of Section 103(k), operators are forced to comply with MSHA’s requirements regardless of reasonableness. Cloaked in the “plan” language of Section 103(k), MSHA forces operators to adopt plans none would otherwise implement simply to lift these orders. Operators are also forced into expedited litigation to contest these orders. This has proven to be problematic even when evidence is presented demonstrating MSHA’s unreasonable application of (k) orders.
Such abuses of discretion leave operators with few avenues for relief, and while there are certainly no measures that ensure 103(k) orders will be lifted, operators can take proactive steps when faced with a pending (k) order. Operators should ensure effective and accurate communication is established with MSHA. When a 103(k) order is issued, operators should make every effort to have MSHA explain the order and what is required for it to be lifted. Operators should expeditiously retain the necessary experts in order to prepare for litigation; reliance on in-house expertise may not be sufficient. Counsel should also be retained early in the event of litigation, and operators should advise counsel of all developments including the retention of experts. Conversations with MSHA and attempts to comply with its requests should be documented, and operators should refrain from disturbing the scene of the event. MSHA has and will issue citations for disturbing the scene of an “accident,” even if the operator is well intentioned.
Patrick W. Dennison is a member of Jackson Kelly PLLC’s Pittsburgh office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8815 or firstname.lastname@example.org.