Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/85639
by Patrick W. Dennison Rock MSHA's expansive use of Section 103(k) orders is a derogation of the purpose and intent of an enforcement tool. SHUTDOWNS Section 103(k) n 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 ad- ministrative 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. I 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 pwdennison@jacksonkelly.com. In the event of any accident occurring in a coal or other mine, an authorized representative of the Secre- tary, 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 "includ- Section 103(k) reads as follows: ing" 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 ac- companying 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 oth- er 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" accord- ing 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 Mc- Carthy 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 AGGREGATES MANAGER March 2012 47