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Rescue and Recovery Work Necessary for Valid MSHA ‘j’ Order, Commission Rules

By Carla J. Gunnin
  • September 24, 2015

Mine regulators have no statutory authority to issue emergency “j” orders for immediately safeguarding people following a mine accident unless rescue and recovery is involved, the Federal Mine Safety and Health Review Commission has ruled. Section 103(j) of the Mine Act gives the Mine Safety and Health Administration authority to take appropriate action to assure personnel safety after an accident “where rescue and recovery work is necessary.”

The FMSHRC decision (Sec’y of Labor v. Big Ridge, Inc., Docket Nos. Lake 2011-699-R, 2011-700-R, and 2012-475, Sept. 9, 2015) follows from an incident in the pre-dawn hours of May 16, 2011 when a continuous mining machine became stuck at Big Ridge’s Willow Lake Portal underground coal mine in Illinois. Part of the machine was under a supported roof, while the remainder was situated beyond the last row of roof-supporting bolts. As miners worked under the supported section to extract the machine, a portion of the unsupported roof gave way. The rock struck the machine, broke apart, and injured a miner. The worker was transported out of the mine by the mine manager and was treated at a local medical facility without being hospitalized.

Approximately two hours after the accident, an inspector for the Mine Safety and Health Administration issued a verbal “j” order over the phone. Following standard procedure, after inspectors arrived at the mine, they changed the “j” order to a “k” order under Section 103(k) to reflect their physical presence at the facility. Three days after the incident, an inspector issued a citation alleging the operator had violated MSHA’s order by continuing to mine in the area of the roof fall without the agency’s permission and had destroyed evidence MSHA needed to carry out its accident investigation.

Big Ridge conceded that it had violated the terms of the order as set forth in the citation, but argued MSHA’s actions were invalid because there had been no rescue or recovery. An administrative law judge (ALJ) disagreed and upheld the citation. He said rescue and recovery were not necessary preconditions for issuing the “j” order; rather, the triggering event is an “accident” as defined under Section 3(k) of the Mine Act. The roof fall and injury met that definition, he concluded. The ALJ also concluded that the “k” order had been validly issued.

On Big Ridge’s appeal to the Commission, MSHA argued that Section 103(j) is ambiguous because Congress was silent regarding the first sentence of the provision, which requires the operator to notify MSHA of an accident and to take appropriate action to assure evidence essential to the accident investigation is not destroyed. The agency contended this language does not address what measures are appropriate to preserve evidence or who makes those determinations. Had the commissioners agreed on the point of ambiguity, MSHA’s chances of success in the litigation would have been improved, because it likely would have prevailed on the next steps in the legal analysis; that is, that MSHA’s interpretation was reasonable and thus entitled to deference.

However, the agency failed to win its ambiguity argument. Holding that “[w]e discern no ambiguity in this [the first] sentence,” the commissioners said that “the Secretary’s authority to issue any section 103(j) control order stems solely from the third sentence of section 103(j) and occurs in the event of an accident where there is ‘rescue and recovery work.’ˮ Accordingly, they vacated the judge’s decision. The judge also had noted that the incident arguably could have been considered a “rescue,” but the commissioners concluded the record was insufficient to draw such a conclusion.

Big Ridge also contended the ALJ erred in applying the definition of “accident” in section 3(k) of the Mine Act in finding that an accident had occurred authorizing issuance of a 103(k) order. Although the judge applied the Mine Act definition of “accident,” Big Ridge contended he should have used the definition in MSHA’s Part 50 rules instead, which would have limited the agency to issuing the order only if the injury had been fatal or had had a reasonable potential to cause death. The Commission rejected this reasoning; the Mine Act definition, it ruled, “applies throughout the Mine Act.”

Thus, the Commission affirmed the judge’s decision that the 103(k) order had been validly issued and that the operator had violated its terms, as set forth in the citation, which carried a negotiated $3,224 fine.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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