Pattison Sand Co. v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 31 July 2012
• Docket Number: Nos. 12–1194,12–1196.,s. 12–1194
• Parties: PATTISON SAND COMPANY, LLC, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor; Mine Safety and Health Administration, Respondents. Pattison Sand Company, LLC, Plaintiff/Appellant, v. Federal Mine Safety and Health Review Commission; Mine Safety and Health Administration, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

688 F.3d 507

PATTISON SAND COMPANY, LLC, Petitioner,

v.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor; Mine Safety and Health Administration, Respondents.

Pattison Sand Company, LLC, Plaintiff/Appellant,

v.Federal Mine Safety and Health Review Commission; Mine Safety and Health Administration, Defendants/Appellees.

Nos. 12–1194, 12–1196.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 16, 2012.

Filed: July 31, 2012.

Henry Chajet, argued, Washington, DC, James L. Pray, Des Moines, IA, David J. Farber, Edward Stephen Wisneski, Avidan Meyerstein, Washington, DC, on the brief, for Appellant.

Jerald S. Feingold, argued, W. Christian Schumann, Heidi W. Strassler, M. Patricia Smith, U.S. Dept. of Labor, Arlington, VA, on the brief, for Appellees MSHR, Secretaryof Labor, and Mine Safety and Health Administration in No. 12–1194.

Sushma Soni, argued, Michael Jay Singer, U.S. DOJ, on the brief, Washington DC, for Appellees MSHR, and Mine Safety and Health Administration in No. 12–1196.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Pattison Sand Company operates a sandstone mine in Clayton, Iowa. After part of the mine roof collapsed near where a miner was working, the Mine Safety and Health Administration (MSHA) issued an order under § 103(k) of the Federal Mine Safety and Health Act (the Act), 30 U.S.C. § 813(k), prohibiting any activity in much of the mine. Pattison challenged the order before the Federal Mine Safety and Health Review Commission (the Commission). An administrative law judge (ALJ) determined that the order was valid and that the Commission lacked authority to modify it.

Pattison separately filed a complaint in federal district court against MSHA and the Commission alleging that their enforcement actions and review procedures are contrary to the Act and the Fifth Amendment's due process clause. The company then moved for a temporary restraining order and preliminary injunction preventing MSHA from enforcing parts of the § 103(k) order. The district court ¹ denied relief. In this consolidated appeal Pattison petitions for review of the ALJ's decision and appeals the district court's denial of relief. We grant in part and deny in part the petition for review, and we affirm the judgment of the district court.

I.

Congress enacted the Mine Safety and Health Act of 1977 to promote the health and safety of miners, the mining industry's “most precious resource.” 30 U.S.C. § 801(a). The Act provides the Secretary of Labor, acting through MSHA, the authority to promulgate health and safety standards for mines and conduct regular inspections. Id.§§ 811(a), 813(a); 29 U.S.C. § 557a.

In the event of a mine accident, § 103(k) of the Act gives the Secretary authority to “issue such orders as [s]he deems appropriate to insure the safety of any person in the ... mine.” 30 U.S.C. § 813(k). Accident is defined to “include[ ]” a “mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” Id. § 802(k). The Act provides in § 104 that the Secretary may issue citations for violations of MSHA regulations and specify a “reasonable time for ... abatement,” even if there has not yet been an accident. 30 U.S.C. § 814(a). If abatement does not occur within the specified time period, the Secretary may order the mine to remove personnel from the area found to be in violation of the abatement order. Id. § 814(a), (b). Upon finding that an “imminent danger” exists in a mine, the Secretary has further authority under § 107(a) of the Act to order withdrawal of personnel from the area of the mine “throughout which the danger exists.” Id. § 817(a).

A mine operator can contest a citation or order issued under the Act before the Commission, an independent adjudicatory body which provides administrative hearings and appellate review. See id. §§ 815(d), 823. After an order is contested, an ALJ appointed by the Commission conducts an administrative hearing and renders a decision. Id. § 823(d)(1). An aggrieved party may seek discretionary review of this decision before the full Commission. Id. § 823(d)(2)(A)(i). If the Commission declines to exercise such authority, the ALJ's decision becomes the Commission's final decision. Id. § 823(d)(1). That decision is appealable to a United States Court of Appeals. Id. § 816(a)(1).

Pattison's operations involve mining sandstone in both above and underground areas. Its mine is one of only three underground sandstone mines in the country and is subject to the Act. The sand produced by the mine is used by other companies to obtain oil and natural gas through fracking. In August 2011, MSHA inspectors issued an imminent danger order under § 107(a) of the Act closing the mine due to a danger of roof falls, also known as ground falls. ²

In the week after the imminent danger order issued, MSHA inspectors traveled to the mine and observed between nine and eleven roof falls. Pattison contested the order before the Commission, and in October 2011 the company and MSHA agreed to a settlement under which the order would be lifted and Pattison would abide by a ground control plan its experts had proposed. As part of this plan, Pattison agreed to routinely scrape away loose material from the mine roof, known as scaling, and to place bolts and mesh on the roof in areas that lacked four feet of solid caprock ³ above the sandstone being mined.

On November 7, 2011, a roof fall occurred in an underground portion of the mine where a miner was using an excavator to scale the roof. Fortunately the miner was in a protected cab and was uninjured by the fall. That same day, MSHA inspector Jim Hines received a “hazard complaint” of an unreported accident at the mine and went to investigate. Kyle Pattison, the mine owner, joined him on a trip to the site of the roof fall, where they saw the excavator partially covered in caprock that had fallen from the mine roof. Because they did not want to get too close to the fallen debris, they estimated the size of the fall to be 35 feet across and 35 feet long with a depth of 12 to 18 inches and a weight of 20 to 30 tons.

Two days later, Hines issued a § 103(k) order “to assure the safety of persons at this operation.” The order indicated that a roof fall had occurred in an unbolted area of the mine which “could have resulted in a fatality.” The order prohibited activity in “all areas of the mine South of crosscut L that are not bolted and meshed until an MSHA examination and/or investigation has determined that it is safe to resume mining operations in the area.” Hines also issued a citation under § 104(a) indicating that the ground control plan Pattison had instituted as part of the settlement “is not adequate to insure miner safety.” Within a week of issuing the § 103(k) order, MSHA modified it to permit Pattison to retrieve equipment for the bolting and meshing process and to allow four Pattison personnel to enter the mine south of crosscut L for a total of 20 hours to evaluate ground conditions.

The parties agree that the § 103(k) order shut down the majority of the underground portion of the mine. Pattison claims that it loses between $20,000 and $50,000 daily as a result of the order and that it would cost over $10 million to install bolts and mesh throughout the underground portion of the mine. Counsel for the Secretary represented at oral argument that following the issuance of the § 103(k) order, Pattison increased production at the surface portion of the mine and bolted and meshed new areas of the underground portion with the result that production is at or in excess of the level achieved before the order issued.

Before the Commission Pattison challenged the validity of the § 103(k) order and the § 104(a) citation. It sought to have both declared invalid, or in the alternative to have the order modified to limit it to the immediate area surrounding the November 7 roof fall. Pattison contended that the § 103(k) order was invalid because the roof fall had not been an “accident” within the meaning of the Act and that even if it had been, the order exceeded MSHA's statutory authority.

An ALJ held an expedited hearing nine days after the order issued. Inspector Hines and MSHA district manager Steve Richetta testified that at the time of the November 7 roof fall, Pattison was in compliance with the October 2011 ground control plan. They both explained, however, that the roof fall indicated that the plan was not working since caprock was continuing to fall. Richetta explained that the fall was particularly troubling because it occurred in what was supposed to be one of the safest areas of the mine, an area where bolting and meshing had not been required due to the presence of caprock at least four feet thick. He indicated that if Pattison continued to operate the underground portion of the mine without providing additional roof support, “someone ... would be injured or we would have a repeat of the fall that occurred.” Dr. Christopher Mark, an MSHA mining expert, testified that based on the fact that caprock had fallen in the November 7 roof fall, the risk of a roof fall injuring miners in any underground area of the mine lacking additional roof support was “unacceptably high.”

Pattison presented expert testimony from Dave West, a sandstone ground control expert. West testified that the area where the fall occurred was uniquely situated because of the presence of a nearby “gully” which had let water in, weakening the mine roof. He contended that it was a “quantum leap” to conclude that the instant roof fall indicated a need for bolts and mesh throughout the underground portions of the mine.

Approximately two weeks after the hearing, Pattison contacted MSHA and requested that the order again be modified to permit Pattison personnel and experts to enter the underground portion of the mine to evaluate conditions, install monitoring equipment, and conduct tests. The...