Aggregates Manager Online August 1, 2011

Court of Appeals Rules Section 103(k) Orders Can Be Challenged

by Better Roads Staff

by Adele L. Abrams, Esq., CMSP

On June 10, 2011, the U.S. Court of Appeals, D.C. Circuit, overruled the Federal Mine Safety and Health Review Commission (FMSHRC) in the case of Performance Coal Co., holding that the company was entitled to seek temporary relief from restrictions that the Mine Safety and Health Administration (MSHA) had imposed under a Section 103(k) order.

Although the decision involved the catastrophic coal mine disaster at the Upper Big Branch Mine in West Virginia, where 29 miners were killed in April 2010, the findings are applicable to any mine — coal or metal/non-metal — that could be subject to extended closures or untenable demands placed by MSHA on a mine operator following any serious accident or fatality. This is a significant case of first impression on this issue.

A Section 103(k) order can be issued by MSHA, under 30 USC § 813(k), which allows the agency to seize control of any mine where it deems necessary “to ensure the safety of any person” in the mine. In the Performance Coal case, MSHA initially issued the order related to the rescue of the trapped miners, and it required the company to obtain MSHA’s approval before taking any action to recover or restore operations at the mine.

However, MSHA did not lift the order quickly following the unsuccessful rescue efforts; rather, it left the order in place for months, and modified it more than 60 times — expanding the scope of the order to “facilitate investigation of the accident site.” To place this in context, in a recent 2010 aggregates fatality, a similar order was left in place for about four months — preventing any mining activity from occurring for purposes of production. Such a shutdown, if unable to be challenged legally, could be crippling to the ability of a smaller company to ever reopen.

In Performance Coal, once recovery efforts were completed, the company, MSHA, and other entities began preparation for a formal investigation (collection, examination and documentation of evidence, determination of causation, and assessment of the company’s civil and criminal liability). However, before Performance Coal could begin its own formal investigation, MSHA modified the Section 103(k) order again to establish an evidentiary protocol that restricted Performance Coal from taking photographs, dust samples, and participating in any destructive testing of materials. The company objected to these restrictions, stating that this deprived it of the ability to assemble what might be exculpatory evidence and to observe the site during MSHA’s formal investigation.

The company finally filed an application with the Commission, seeking temporary relief from these restrictions, and filed the action under Section 105(b)(2) of the Mine Act, which permits an operator to file with FMSHRC a written request for temporary relief from any modification or termination of any order issued by MSHA.

The Secretary of Labor opposed the application, claiming that the Mine Act did not authorize any temporary relief from Section 103(k) orders. The case was heard by ALJ Margaret Miller, who agreed with the Secretary and denied the request. ALJ Miller took the position that only orders issued under Section 104 of the Act (e.g., unwarrantable failure orders) could be challenged — not those issued under Section 103 of the Act.

Performance Coal then filed a Petition for Discretionary Review with the full Commission, and, while the FMSHRC granted the Petition for Review, it ruled 3-2 in denying the request for temporary relief. The FMSHRC, too, held that only orders issued under Section 104 were subject to requests for relief. If this position stood, then MSHA could theoretically keep a mine closed forever (or place any unreasonable restrictions it desired upon a mine) without any resource for the mine operator, and without any due process afforded.

When the case came before the U.S. Court of Appeals, it first rejected MSHA’s claim that the case was moot (the Secretary said no live controversy remained), finding that, because the duration of the challenged action was too short to be litigated fully before it expired but there was a reasonable expectation that the party could be subject to the same action again, the claim was not moot. Court case law has held that agency actions which could last just two years are “too fleeting to be litigated fully” and noted that Section 103(k) orders can be frequently modified, and the inevitability of such future modifications kept the controversy alive. In fact, the Section 103(k) order had continued in place during the pendency of the appeal, even though the most offensive provisions had ultimately been lifted.

The meat of the ruling addressed the scope of temporary relief under the Mine Act. Section 105(b)(2) of the Act specifically states that the applicant can file a written request for temporary relief “from any modification or termination of any order or from any order issued under section 814 [which is known as Section 104] of this title, together with a detailed statement giving the reasons for granting such relief.” The Secretary’s claim that this limited such relief to Section 104 orders read out in the first section — which included “any order.”

This means that not only Section 103(j) and 103(k) orders can be the subject of actions for temporary relief, but also imminent danger orders issued under Section 107(a) of the Mine Act, which MSHA often uses to close all or part of a mine for prolonged periods of time (e.g., when an inspector believes that a highwall or a mining method is hazardous to miners).

The Court of Appeals called the language in Section 105(b)(2) “a marvel of Congressional clarity” and held that it could not be interpreted any way other than that advanced by Performance Coal. Parsing the grammar of the statutory language, the court held that Section 105(b)(5) means that temporary relief is available from any modification or termination of any order … as well as from those specifically issued under Section 104. Therefore, Performance Coal’s petition was granted and the Commission’s order was set aside.

Court of Appeals Rules Section 103(k) Orders Can Be Challenged

by Better Roads Staff

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies.

She is a member of the Maryland, DC, and PA Bars, the U.S. District Courts of Maryland and DC, the U.S. Court of Appeals, DC Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University National Law Center, and earned her B.S. in Journalism from the University of Maryland, College Park. Contact her at The Law Office of Adele L. Abrams’ website is