August 23, 2019

Tenth Circuit: Closure of Mines Justified Revocation of MSHA Modifications

The Tenth Circuit Court of Appeals issued its opinion in Andalex Resources, Inc. v. Mine Safety & Health Administration on Tuesday, July 7, 2015.

Andalex Resources operated two coal mines in Utah. During the course of its mining operations, Andalex requested and received several modifications to rules of the Mine Safety and Health Administration (MSHA). In 2008, Andalex ceased mining operations at both locations and sealed the mines, leaving some infrastructure in place and leaving some equipment underground. The MSHA revoked the modifications in response to Andalex’s sealing of the mines, considering the sealing a “change of circumstances” that would allow revocation under 30 C.F.R. § 44.52(c). Andalex appealed and was granted a hearing in front of an ALJ. Andalex moved for a summary decision, arguing revocation was improper because MSHA had not shown a change of circumstances and also that it was merely maintaining the mines in a “temporary idle status” rather than closing them permanently. The ALJ affirmed the MSHA’s decision to revoke the modifications, ultimately finding that the sealing of the mines was a change of circumstances warranting revocation.

Andalex appealed the ALJ’s decision to the MSHA Assistant Secretary, who affirmed the ALJ. The Assistant Secretary also concluded that the changed circumstances—the closure of the mines—justified revocation of the modifications. The Assistant Secretary further concluded Andalex’s inability to maintain the equipment was alone a change of circumstances sufficient to justify revocation of the modifications. Andalex timely petitioned for Tenth Circuit review.

The Tenth Circuit first noted that it owed wide deference to the agency determinations, particularly where they concern the agency’s area of expertise. The Tenth Circuit noted the evidentiary standard for reasonableness of the agency action was very low—more than a scintilla but less than a preponderance of the evidence. Andalex argued the agency’s action was arbitrary and capricious and that the Assistant Secretary misapprehended or misapplied the § 44.52(c) standards. MSHA countered the Assistant Secretary and ALJ properly applied the factors and correctly found a change in circumstances.

The Tenth Circuit noted that although the Assistant Secretary engaged in speculation, it could find no abuse of discretion in the Assistant Secretary’s conclusion that sealing the mines was a change in circumstances sufficient to support revocation of the modifications. The Tenth Circuit, according deference to the agency actions, also found substantial evidence supported the MHSA’s decisions.

The Tenth Circuit denied the petitions for review.

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