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U.S. court issues ruling in West Ridge matter

Sun Advocate community editor

In an expedited hearing conducted on Feb. 20-21 in Denver, Colo. Mine Safety and Health Review Commission Administrative Law Judge Richard Manning presided over a notice of contest brought forward by West Ridge, Inc against the secretary of labor, acting through the Mine Safety and Health Administration.

West Ridge has been the subject of several 103(k) mine plan modifications. The issue started Jan. 31 and culminating in a final decision prohibiting the further mining of panel 13. This decision was the plaintiff's main subject of litigation at the February hearing.

According to the formal decision issued by MSHA, both parties presented numerous witnesses and exhibits at the two day hearing including mining engineers and roof control specialist. The testimony boiled down to a basic argument.

Section 103(k) of the Mine Act gives the Secretary of Labor authority to issue what are known as control orders at the nation's mines. That section provides:

•"In the event of any accident occurring in a coal or other mine, an authorized representative of the secretary, when present, may issue such orders as she deems appropriate to insure the safety of any person in the coal or other mine and the operator of such mine shall obtain approval of such representative...of any plan to recover any person in such mine or to recover coal...or return affected areas of the mine to normal."

West Ridge argued that the secretary's decision to modify the section 103(k) order to prohibit the company from mining panel 13 inby crosscut 32 was unreasonable and was an abuse of the secretary's discretion. They further stipulate that evidence shows that mining panel 13 by remote control was very successful because it greatly reduced the exposure of miners to hazards presented by bounces. The parties reached an agreement on Feb. 7 that West Ridge would try to mine panel 13 by remote control under an amended roof control plan and that MSHA would would evaluate the plan to determine the feasibility and exposure. West Ridge reported that all credible evidence showed that the amended plan worked better than expected and that the exposure of the miners to the hazards of bounces was greatly reduced.

"West Ridge employees were shocked when they learned that all mining in panel 13 had to stop," states the court document. "MSHA never evaluated the amended roof control plan that authorized remote mining and arbitrarily decided that, because the amended plan could not assure that there would never be any more bounces on the tailgate end of the face, mining should cease in panel 13."

Lead attorney for West Ridge Resources, Kevin Anderson, further explained the company's position during a telephone interview on Feb. 28.

"While we have not calculated the total cost of the mine's current position we did put into our testimony that the company would be leaving behind 800 thousand tons of coal and cutting two and a half to three months off the life span of the mine by ceasing the mining of panel 13," he said. "Joy Manufacturing came right in and helped us install state of the art equipment and techniques following the required modifications and we were able to see viable success with our remote mining endeavor in panel 13."

The remote mining was very slow due TO the fact that the underground operation was only able to make four to six cutting passes per shift and could only cut in one direction, Anderson explained. But the company felt that the remote mining operation was functional and safe.

"Right now we have 290 miners that are laid off while we try to come to a resolution concerning the West Ridge Mine," he said.

Court documents further state, "on the morning of Feb. 13, without any warning, MSHA initiated a conference call to advise West Ridge it would not be permitted to mine past crosscut 32 in panel 13. This call included high level MSHA officials such as Ed Chair and Kevin Stricklin."

"Three local MSHA inspectors had been closely monitoring the longwall section, yet MSHA initiated this conference call after the district manager had a conversation that morning with only one of the three inspectors," continued the federal court documents.

West Ridge contended that the secretary exceeded her authority in issuing the final 103(k) order.

The initial withdrawal order was issued on Jan. 31 because an outburst had occurred between shields 134 and 144. The order was issued to assure the safety of all persons until an examination and/or investigation of the bounce or outburst area is made to determine that the area is safe.

The company contended that West Ridge had instituted significant technological changes to prevent future injuries.

"There is no legal justification to modify the order to prohibit further mining," concluded the summary of West Ridge's position. "If MSHA had a problem with the amended roof control plan, it should have sought further negotiations or issued a section 104(a) citation, rather than modify the 103(k) order in an illegal manner."

In addition to the legal standing concerning the proceedings, West Ridge representative Anderson indicated that the company has standing contracts with several power production customers who are in need of coal resources.

"The coal mined at West Ridge is high BTU, low sulfur coal that is preferred by many power generating facilities," pointed out Anderson.

Despite the company's position, the court documents recognized the secretary's "plenary" or absolute power to issue and modify section 103 (k) orders.

The secretary's stance argued that the court should not disturb her authority unless she had, indeed, abused the discretionary authority of her federal office.

"It is not improper for MSHA to use her authority under section 103(k) to require a mine operator to implement a new roof control plan to ensure the safety of miners," argued the federal agency. "MSHA performed an evaluation of the amended plan and determined that it did not adequately protect miner safety. On that basis, MSHA concluded that the subject modification to the order of withdrawal was necessary."

"MSHA is not required to interview everyone who was involved in the evaluation or to explain why it gave weight to some facts and not others. In short, MSHA exercised its professional judgment that the amended roof control plan could not safely be used in panel 13," pointed out the federal mine safety and health agency.

Throughout the remainder of the lengthy 18-page decision, the court referred to the fact that West Ridge had repeatedly contended that MSHA officials did not give adequate time or evaluation to the "considerable time and resources" the operation undertook in order to institute a remote mining system.

A full copy of the U.S. court's decision in the West Ridge matter is available to the public.

However, the federal judge's decision boils down to several basic statements of fact.

"Despite the problems in the manner in which MSHA evaluated the amended roof control plan ... the explanation provided by district manager Davis for the subject modification in his letter on Feb. 13 was reasonable," indicated Judge Manning. "I recognize that reasonable people could disagree whether the amended roof control plan was adequately protecting miners from bounces."

"The company strongly believes that the plan worked better than expected," continued the written decision. "I only have jurisdiction to determine whether the secretary acted reasonably when she issued the subject modification to the section 103(k) order. I cannot substitute my judgment for hers."

Judge Manning concluded that the secretary acted reasonably and, due to the unpredictable nature of mine bounces, bumps and outbursts, the notice contesting the MSHA order was denied and the modification was affirmed by the court.

Following the decision, Anderson stated that West Ridge will now consider three options. The company will either:

•Move the longwall to panel 14, which West Ridge stipulated is already developed on the other side of a 500 foot barrier.

•Appeal the court's decision.

•Or continue negotiations with MSHA concerning the further mining of panel 13 with further roof control plan modifications.

Company officials stated that they felt as if they were fighting for all deep cover mines and will continue to work toward improving technology as well as safety within "bounce" prone areas.

"It is my understanding that UtahAmerican is here to stay. I can tell you that the company is currently continuing to develop Lila Canyon. Company employees are currently cutting the portal and several of the laid off individuals are currently employed there," responded Anderson when asked about the company's future plans in Utah.

"We are just going to keep working at this situation until we come to a conclusion," pointed out Anderson. "If everyone is safe and everyone is back to work then both parties will be happy."

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