**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

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| CANYON FUEL COMPANY LLC,
                            Contestant,

 

 

 

                        v.

 

 

SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH

ADMINISTRATION,  MSHA,

                            Respondent                                                                          |   |   | CONTEST  PROCEEDING

 

Docket  No. WEST 2024-0152-R

Order  No. 9730947; 02/26/2024

 

 

 

 

Mine: Skyline Mine #3

Mine  ID: 42-01566 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                                                                                                                              |   |   |                                                                                                                                                                     |

**AMENDED**[1]** ORDER DENYING CONTESTANT’SMOTION**

**FOR EXPEDITEDREVIEW**

 

            Before the Court isContestant, Canyon Fuel Company LLC’s Notice ofContest. (“Canyon Fuel” and “Contest”) and its Motion to Expedite thisproceeding (“Motion”). Thereafter, Canyon filed an Amended Motion to Expeditethe proceeding, “to correct two miner [sic][2]errors.” Amended Motion at 1. 

 

            Canyon Fuel is contesting asection 104(d)(2) order, Order No. 9730947, issuedon February 26, 2024, seeking to have it vacated and to have “all actionstaken, or to be taken, with respect thereto or in consequence thereof, bedeclared null or void and of no effect.” Contest at 3. The acting Secretary ofLabor filed an Answer, challenging the assertions made by the Contestant. Forthe reasons which follow, the Court **DENIES** the Motion.

 

            The challenged section104(d)(2) order states:

 

            Themine operator engaged in aggravated conduct constituting more than ordinarynegligence by failing to follow their approved ventilation plan dated, March15, 2023, amended February 5, 2024, titled, “Conversion of Three ExistingVentilation Seals in Mine 4 to Hydraulic Bulkheads”, page #7, Table #1 ofSummary of Bulkhead Alarm Levels that when the water pressure equals or exceeds4.4 psi at Bulkhead #10 or 2.5 psi at Bulkhead #9, the following response isrequired, “Level 2 alert. Immediate response required. Discharge pipes at sealsnotified.” An MSHA inspection found seals 7 and 8 are not equipped with anydischarge pipes. The mine operator misrepresented to MSHA in writing that seals7 and 8 have discharge pipes that would be used to remove water from the sealedarea as an emergency response to high water pressure behind bulkhead #9 and#10, when in fact the mine operator knew that those discharge pipes didn’texist. This order will be reviewed for special assessment. This violation is anunwarrantable failure to comply with a mandatory standard.

 

Contest at 4.

 

**Section 104(d) ofthe Mine Act**

 

Within the subject of Citations andOrders, Section 104(d)(1) provides: 

 

If, upon anyinspection of a coal or other mine, an authorized representative of theSecretary finds that there has been a violation of any mandatory health orsafety standard, and if he also finds that, while the conditions created bysuch violation do not cause imminent danger, such violation is of such natureas could significantly and substantially contribute to the cause and effect ofa coal or other mine safety or health hazard, and if he finds such violation tobe caused by an unwarrantable failure of such operator to comply with suchmandatory health or safety standards, he shall include such finding in any citationgiven to the operator under this chapter. If, during the same inspection or anysubsequent inspection of such mine within 90 days after the issuance of suchcitation, an authorized representative of the Secretary finds another violationof any mandatory health or safety standard and finds such violation to be alsocaused by an unwarrantable failure of such operator to so comply, he shallforthwith issue an order requiring the operator to cause all persons in thearea affected by such violation, except those persons referred to in subsection(c) to be withdrawn from, and to be prohibited from entering, such area untilan authorized representative of the Secretary determines that such violationhas been abated.

 

30 U.S.C. §814(d)(1).

 

**The challenged provision of the Mine Act,Section 104(d)(2) provides**: 

 

If a withdrawalorder with respect to any area in a coal or other mine has been issued pursuantto paragraph (1), a withdrawal order shall promptly be issued by an authorizedrepresentative of the Secretary who finds upon any subsequent inspection theexistence in such mine of violations similar to those that resulted in theissuance of the withdrawal order under paragraph (1) until such time as aninspection of such mine discloses no similar violations. Following aninspection of such mine which discloses no similar violations, the provisionsof paragraph (1) shall again be applicable to that mine.

 

30 U.S.C. §814(d)(2).

** **

**CanyonFuel’s challenge to the Section 104(d)(2) Order**

** **

            In its Notice of Contest, CanyonFuel “avers that the Order is illegal and invalid and should be vacated for thefollowing reasons:

 

a)     The Order is notin conformance with requirements of Section 104(d),

other provisionsof the Act or applicable mandatory standards and regulations.

            b) Theinspector’s evaluations are without foundation in fact or law.

            c) Theunwarrantable failure designation is not appropriate or proper.

            d) Thehigh negligence designation is improper and contrary to law.

 

Contestat 2. 

 

**CanyonFuel’s Amended Motion to Expedite Proceedings**

** **

****Afterrepeating the information in its Contest, Respondent goes on to state:

 

4. The seals atissue were originally built soon after April 2020 under a plan approved by MSHAon April 23, 2020, which did not require the presence of discharge pipes. MSHAwas aware of this fact and inspected such seals where they had no dischargepipes.

 

5. To installdischarge pipes after construction of the seals is neither feasible or safe.

 

6. When the planof conversion of the seals to bulkheads was submitted on September 1, 2022there was no reference to discharge pipes in bulkheads 7 and 8. There was alist of deficiencies from MSHA Tech Support on November 21, 2022 which againdid not reference discharge pipes in bulkheads 7 and 8. A revised submittal onDecember 16, 2022 did reference them but it is unclear at this point whorequested that provision. There was no attempt to misrepresent the condition ofthe seals; there was a mutual mistake in including those discharge pipes. MSHApersonnel knew there were no discharge pipes in seals 7 and 8 and knew it wasnot feasible to install them. There were such pipes in seals 9, 10 and 11 andthey were at lower elevations than bulkheads/seals 7 and 8.

 

7. The injury orillness from the alleged violation was designated as “unlikely.” The previousorder was issued December 6, 2023 and there is a question because of the lapsein time and regular and spot inspections whether a “clean” inspection hadoccurred.

8. Canyon Fuel hasa number of steps it takes if pressures rise to certain limits at seals 9 and10. They include:

 

                        a. Ceasing to pumpwater behind the bulkheads;

                        b. Pumping waterfrom behind the bulkheads;

                        c. Releasing waterfrom bulkheads 9, 10 and 11 

                          from theexisting discharge pipes.

 

9. Canyon Fuel hassubmitted a plan to terminate the order and the approval of such plan does notinclude installing discharge pipes in seals 7 and 8 which is neither feasibleor safe.

 

10. An expeditedhearing is necessary to resolve the validity of the Order and to facilitatemitigation of the alleged condition.

 

AmendedMotion at 3-4.

 

**The Respondent, Secretary of Labor’s, Responsein Opposition to Contestant’s Amended Motion to Expedite Proceedings(“Opposition”)**

** **

****The****Secretary’sOpposition, states: 

 

On March 15, 2023,MSHA approved a ventilation plan for mining at the Skyline Mine #3 and approvedan amended ventilation plan on February 5, 2024. On February 26, 2024, theSecretary’s authorized representative, Mine Inspector Michael C. Olsen, issuedOrder Number 9730947 to Contestant pursuant to Section 104(d)(2) of the MineAct after he found Mine 4 seals 7 and 8 were not equipped with water dischargepipes as required by Contestant’s approved ventilation plan. Contestant filedits Notice of Contest of Order No. 9730947 on March 4, 2024, challenging theorder and its negligence designations and arguing there are disputes regardingthe facts surrounding the cited violation. Contestant filed its Amended Motionto Expedite Proceedings on March 6, 2024, arguing generally, without specificfactual or legal support, that “[i]f an expedited hearing is not granted,Canyon Fuel will be irreparably harmed.”

 

Opposition at 2.

 

            TheSecretary contends that the:

 

Contestant doesnot identify any extraordinary or unique circumstances resulting in continuingharm or hardship that necessitate an expedited hearing. Thefact of the matter is that the violation at issuedoes not affect work on the working sections of the mine. *Notably, manyof the facts in dispute regarding Order No. 9730947 are related to issues atthe mine that have been ongoing since mid-November 2023**when a seal catastrophically failed**, **causing an inundation at themine** when three miners narrowly escaped, and resulting in the issuanceof enforcement actions that are the subject of an open 110(c) investigation.The parties have sought to stay one of them pending the outcome of the 110(c)investigation.*

At issue with thisand at least two of the other orders is whether Contestant complied with itsapproved ventilation plan. While there may be factual disputes regarding whatContestant represented to MSHA about discharge pipes and seals 7 and 8, andwhat MSHA knew about the presence of such discharge pipes, those facts go tothe negligence and gravity of the violation – and do not rise to level ofcreating extraordinary or unique circumstances that warrant an expeditedhearing. 

 

*Id*. at 2-3.(emphasis added).

 

            TheSecretary sums up its position, stating it:

 

concurs thatComplainant has submitted a revised ventilation plan to MSHA which is currentlyunder review. Importantly, this plan and process will continue in the normalcourse and does not support the need for an expedited hearing here. Stateddifferently, **approval of a revised plan that does not include installingdischarge pipes in seals 7 and 8** has no bearing on the violation at issuehere, i.e. whether Respondent complied with the approved ventilation plan ineffect at the time of the inspection. Finally, the complexity and number ofissues in this case and related cases call for a more deliberate pace. Bothparties will benefit from written discovery, depositions, and expert testimonyto resolve these issues and the parties will need sufficient time to completethe discovery process. 

 

*Id.* at 3. (emphasisadded).

 

**Discussion**

** **

****The Secretarycorrectly states the standard for review when a Commission judge is presentedwith a Motion for Expedited Review.

 

            As articulated by former ChiefAdministrative Law Judge Paul Merlin in *Southwestern Portland Cement*, 16FMSHRC 2187 (Oct. 1994) (CALJ).

 

            Section2700.52(a), supra, does not specify the basis upon which an expedited hearingmay be sought and granted. The Commission has held that consideration of anexpedited hearing request remains within the discretion of the judge. WyomingFuel, 14 FMSHRC 1282 (August 1992). Commission Judges have held that in orderto be entitled to such consideration, an operator must show extraordinary orunique circumstances resulting in continuing harm or hardship. *ConsolidationCoal Company*, 16 FMSHRC 495 (February 1994); *Energy West Mining Company*,15 FMSHRC 2223 (October 1993); *Pittsburgh and Midway*, 14 FMSHRC 2136(December 1992); *Medicine Bow Coal Company*, 12 FMSHRC 904 (April 1990).In the foregoing cases, it was held that the possibility operators could besubject to withdrawal orders under section 104(d) of the Act, 30 U.S.C. §815(d), did not justify expedited hearings.

 

*Id.*

Subsequent caselaw has adhered to these principles. *See, for e.g., IMI Aggregates,*45 FMSHRC789,**(Aug. 2023) (ALJ).

 

 

 

In the Court’sestimation, the Contestant presents, at times conflicting, arguments, whichcollectively fail to demonstrate any extraordinary or unique circumstancesresulting in continuing harm or hardship. The arguments begin with what theCourt considers to be, at least for the purposes of this motion, an irrelevant referenceto an April 2020 ventilation plan. Amended Motion at 2-3. It then moves to morethan two years later when a new plan was submitted. *Id.*

 

                        Thenew plan apparently involved conversion of seals to bulkheads. Though admittingthat MSHA’s Tech Support listed deficiencies with the plan, the Contestanttwice asserts that there was no reference to discharge pipes in bulkheads 7 and8. *Id.*at 3. It then immediately admits that a revised submittal [fromContestant] on December 16, 2022 *did* reference them, while changing thesubject to assert that it “is unclear at this point who requested thatprovision.” *Id.*From there, Contestant then asserts “[t]here was noattempt to misrepresent the condition of the seals” and that all of this cameabout as “a mutual mistake in including those discharge pipes.” *Id.*

 

                        Contestantcontinues its argument asserting that “MSHA personnel knew there were nodischarge pipes in seals 7 and 8 and knew it was not feasible to install them,”but then admits that “[t]here were such pipes in seals 9, 10 and 11 [but that]they were at lower elevations than bulkheads/seals 7 and 8.” *Id.*

* *

                        CanyonFuel then fans out its argument mentioning that the “alleged violation wasdesignated as ‘unlikely’ and that there is an issue whether a clean inspectionhad occurred. *Id.*Contestant’s sprawling arguments then move to thesteps it has taken to address “if pressures rise to certain limits at seals 9and 10.” *Id.* These remarks can fairly be construed as tacit admissionthat the hazards from November 2023, when a seal catastrophically failed,causing an inundation at the mine when three miners narrowly escaped, are notfigments.

 

                        TheContestant then notes that it has submitted a plan to terminate the order,adding that its plan does not involve installing discharge pipes in seals 7 and8. *Id.* at 4. The *irreparable harm* it asserts is “to resolve thevalidity of the Order and to facilitate mitigation of the alleged condition.” *Id*.The former is a garden variety issue in 104(d)(2) orders and the *facilitationof mitigation* does not appear to be a subject warranting expedited review. 

 

 

                        Insum, the Court agrees that the violation at issue here is “whether theRespondent complied with the approved ventilation plan in effect at the time ofthe inspection.” Opposition at 3. The Court has determined that noextraordinary or unique circumstances resulting in continuing harm or hardshiphas been presented. *Canyon Fuel does not contend that the violation at issueaffects work on the working sections of the mine.* In addition, the Courtagrees with the Secretary that “the complexity and number of issues in thiscase and related cases call for a more deliberate pace. Both parties willbenefit from written discovery, depositions, and expert testimony to resolvethese issues and the parties will need sufficient time to complete thediscovery process.” *Id.*

 

 

                        Accordingly,Contestant’s Motion is **DENIED.**

** **

**SOORDERED.**

** **

** **

** **

****/s/ William B.Moran

William B. Moran

Administrative LawJudge

 

Distribution:

 

R. Henry Moore,Esq., Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA15222,

(hmoore@fisherphillips.com)

 

Bryan Kaufman, Esq.,Office of the Solicitor, U.S. Department of Labor, MSHA, 1244 Speer Blvd., Suite515, Denver, CO 80204 (kaufman.bryan.r@dol.gov)

 

Karen E. Bobela,Esq., Office of the Solicitor, U.S. Department of Labor, MSHA,

(bobela.karen.e@dol.gov)

 

Paula Klein, Officeof the Solicitor, U.S. Department of Labor, MSHA

(klein.paula@dol.gov)

 

AmandaKiel, Office of the Solicitor, U.S. Department of Labor, MSHA

(kiel.amanda.j@dol.gov)

----

[1] This AmendedOrder makes but one change, adding the letter R to the docket number.

[2]Sic is aLatin adverb referring to “intentionally so written — used after a printed wordor passage to indicate that it is intended exactly as printed or to indicatethat it exactly reproduces an original.” *Sic,*Dictionary (Apr. 2, 2024), https://www.merriam-webster.com/dictionary/sic.