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District Court Says It Lacks Jurisdiction to Alter or Amend Withdrawal Orders

By Ellen Smith

A U.S. District Court ruled that it does not have jurisdiction to alter or amend an MSHA withdrawal order issued to an underground sand mine in Clayton County, Iowa. The U.S. District Court for the Northern District of Iowa, Eastern Division said in a brief decision that Pattison Sand Co. did not cite any authority to support its contention that a District Court has jurisdiction.

The court said the issues raised by the sand company are within the scope of the [Federal Mine Safety and Health Review] Commission’s expertise. The court’s rejection upholds Review Commission ALJ Thomas McCarthy’s ruling, and MSHA’s withdrawal order.

The case arose after the sand company experienced five roof falls in a nine-month period. MSHA insisted on a new mine plan, but the operator and MSHA did not agree on roof-control measures. MSHA wanted “engineered support” consisting of roof bolts and mesh, while the operator said such aggressive support measures would not be needed in areas of stronger “cap rock,” which is a stronger, harder, or more resistant rock type overlying the weaker ore body. Under the compromise plan, if a pothole or brow existed, or there was less than 4 ft. of cap rock, then the company was to use engineered support. Otherwise, the company would rely on scaling to take down loose rock.

This compromise plan was in effect when a sixth roof fall occurred on Nov. 7, 2011, partially covering an excavator. A MSHA inspector issued a 103(k) order, based on the belief that the latest ground control plan did not work. The 103(k) order covered all areas of the mine that were not bolted or meshed, including areas of the primary crusher and wet screen. The inspector did not list any action to terminate the citation or order, but suggested the company submit a new ground control plan with MSHA.

In an expedited hearing before the Review Commission ALJ, the company attempted, and failed, to challenge MSHA’s 103(k) order with several arguments. The company attempted to argue the 103(k) order was not valid because an “accident” did not occur within the meaning of the Mine Act. An “accident,” as defined by the Mine Act, “includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person,” and not one of those episodes occurred in this case, according to Pattison.

The ALJ strongly disagreed. An event does not have to be listed in the Mine Act if it is similar in nature or presents a similar potential for injury or death. The roof fall “presented a potential for injury or death similar to that of a mine explosion, ignition, fire or inundation.”

The company then argued the 103(k) order was an abuse of agency discretion, because MSHA was not relying on the scientific data in approving a roof control plan. The company wanted the ALJ to determine if the 103(k) order was “reasonable.”

ALJ McCarthy said the test is not whether the order was “reasonable,” but whether the order was “arbitrary and capricious,” and in this case it was not. The agency did not act in bad faith when it insisted that work could not be performed unless the roof was bolted and screened, as MSHA was insisting in a new plan. “Absent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the inclusion of specific provisions as a condition of the plan’s approval,” McCarthy wrote.

The company then asked the ALJ to modify and limit the scope of the 103(k) order to the area affected by the ground fall, allowing the company to use the screening area.

However, “Neither the Commission nor its judges are authorized representatives of the Secretary under Section 103(k), and just as they do not have legal authority to charge an a operator with violations of the Mine Act by modifying a citation, I find that they likewise do not have the legal authority to modify a 103(k) enforcement order,” McCarthy wrote.

Twenty-nine days after ALJ McCarthy’s ruling, and 12 days after the district court’s decision, the Pattison mine experienced a seventh roof fall on Jan. 11, 2012.

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at This email address is being protected from spambots. You need JavaScript enabled to view it..