MSHA may issue an imminent danger order either to a production operator, an independent contractor, or both, and its decision is unreviewable by the court.

Administrative Law Judge Thomas McCarthy drew that conclusion in a case involving Cloverlick Coal Co., LLC, which had contested an imminent danger order a federal inspector had issued at its Mine No. 1 in Kentucky in February 2012. Someone had complained to MSHA that water and rocks from a steep embankment were falling into a large hole a contractor had dug at the base of the hill to build a foundation for a retaining wall and a support structure. The imminent danger order was issued under Section 107(a) of the Mine Act.

Cloverlick argued MSHA had abused its discretion by directing the order against Cloverlick rather than against its contractor, Cumberland Mine Service, Inc. Cloverlick said it had done nothing wrong and contended the allegedly hazardous condition at the work site was solely within Cumberland’s control. However, citing court precedent, McCarthy said it would be “anathema to the [Mine] Act’s enforcement scheme” for Cloverlick to contract away its duties.

The operator also contended the order should be vacated because MSHA did not follow its own enforcement guidelines when it issued the order to Cloverlick and not to Cumberland. But the judge said courts “have universally held that the enforcement guidelines are merely a general statement of policy that do not curtail the Secretary’s discretion.”

The enforcement guidelines appear in MSHA’s Program Policy Manual and have been published in the Federal Register. They outline general guidance about when a production operator, an independent contractor, or both might be cited, and state that “inspectors should cite independent contractors for violations committed by the contractor.” However, McCarthy said the guidelines “lack the certainty to bind the Secretary’s discretion” in deciding who to cite.

The judge said MSHA was still obligated to explain why it deviated from established policy. Nonetheless, in his August 5 decision he stated that there was insufficient evidence in the case to determine the extent to which the agency had relied upon its guidelines.

“Accordingly, under extant [Federal Mine Safety and Health Review] Commission and U.S. Circuit Court precedent I am constrained to find that the authority of the Secretary to issue an imminent danger order to a particular party is unreviewable,” McCarthy said.

The agency cited both Cloverlick and Cumberland for allegedly failing to provide and maintain safe access to the working place. McCarthy threw out the citation against Cloverlick. He identified the “working place” as the hole, saying no evidence had been provided that access to it was unsafe. In a separate proceeding, Cumberland settled its citation after agreeing to a $2,400 fine.