|U.S. Department of Labor|
Office of the Solicitor
Division of Mine Safety and Health
What's new in the MSH Division?
|U.S. Department of Labor|
Office of the Solicitor
Division of Mine Safety and Health
What's new in the MSH Division?
Mach Mining, LLC v. Secretary of Labor, – F.3d – (7th Cir. 2013). On August 26, 2013, the United States Court of Appeals for the Seventh Circuit issued a decision in this case involving a ventilation plan dispute at an underground coal mine in Illinois. The Court upheld the MSHA district manager’s actions in refusing to approve various aspects of the mine operator’s proposed ventilation plan. In doing so, the Court ruled (1) that the district manager’s actions were to be reviewed under the “arbitrary and capricious” standard and (2) that the district manager took the actions he took only after engaging in good-faith negotiations.
Performance Coal Co., FMSHRC No. WEVA 2008-1825. On August 2, 2013, the Commission issued a decision in this case arising at the Upper Big Branch Mine in West Virginia. MSHA initially proposed a civil penalty of $4,329 but, in the post-hearing brief, MSHA proposed a civil penalty of $34,653. The judge failed to address the post-hearing proposal of $34,653, and instead assessed the penalty of $4,329. The Commission held that the judge erred by failing to discuss the Secretary’s argument in support of an increased penalty, and remanded the case to the judge with instructions to do so.
Oak Grove Resources, LLC, FMSHRC Nos. SE 2009-261-R etc. On July 25, 2013, the Commission issued a decision in this safeguard case. The issue was whether the judge erred in finding that a safeguard notice was invalid because it failed to adequately identify the hazard at which it was directed. In a two-to-one decision, the Commission held that the safeguard notice adequately identified the hazard -- it referred to a locomotive pushing two loaded supply cars -- and that it was not required to also describe the potential risks and harms associated with the hazard. The Commission remanded the case to the judge to determine whether the safeguard notice was violated.
Prairie State Generating Co., LLC, FMSHRC Nos. LAKE 2009-711-R etc. On July 16, 2013, the Commission issued a decision in this case involving a ventilation plan and roof control plan dispute at an underground coal mine in Illinois. In a two-to-one decision, the Commission: (1) affirmed the judge’s action in applying the “arbitrary and capricious” standard of review to MSHA’s disapproval of the operator’s proposed plans, (2) affirmed the judge’s action in upholding MSHA’s disapproval of the proposed use of extended 40-foot cuts, 20-foot-wide entries, and 68-foot-long diagonals at intersections, (3) vacated the judge’s action in upholding MSHA’s disapproval of the way the proposed plans dealt with ventilation quantities, red zone issues, the number of turns in crosscuts, curtain setback, installation of mesh in-cycle roof protection, and limitation of the number of times a roofbolter can operate downwind of a continuous miner on shift, and remanded to the judge to adequately explain her upholding of MSHA’s disapproval with regard to those issues, (4) affirmed the judge’s action in upholding MSHA’s application of MSHA’s Extended Cuts Procedure Instruction Letter (“PIL”) to the mine, and (5) affirmed the judge’s action in excluding evidence regarding approved plans at other mines using extended cuts, a study on the use of 40-foot extended cuts, and NIOSH studies on 40-foot extended cuts .
S&S Dredging Co., FMSHRC No. SE 2007-447-M. On July 11, 2013, the Commission issued a decision in this case involving a violation of a safety standard consisting of defective steps on a wheel loader. The judge vacated the significant and substantial (“S&S”) designation on two grounds: (1) that the injuries that were reasonably likely -- sprains and a broken ankle -- were not reasonably serious because there was no evidence that they would require hospitalization, surgery, or a long period of recuperation and (2) that the bottom step was only 1 foot off the ground. The Commission ruled that the judge erred in three respects: (1) he applied an incorrect legal standard in determining whether the injuries were reasonably serious -- the Commission has held that muscle strains, sprained ligaments, and fractured bones are reasonably serious, (2) his finding that the injuries would not require a long period of recuperation was inconsistent with his finding that the injuries included a broken ankle, and (3) his finding that the bottom step was only 1 foot off the ground ignored the fact that the bottom step was unusable and that the lowest step that was usable was 3 feet off the ground. The Commission affirmed the S&S designation and remanded the case for assessment of an appropriate penalty.
Secretary of Labor on behalf of Darrick Piper v. Ken American Resources, Inc., FMSHRC No. KENT 2013-751-D. On July 3, 2013, the Commission issued a decision in this case in which the operator argued that an individual who alleged that he had been discriminatorily laid off for engaging in statutorily-protected activity at the mine was not eligible for temporary reinstatement because the fact that he had been laid off made him no longer a “miner” within the meaning of Section 105(c)(2) of the Mine Act. The Commission has held that only a “miner” is eligible for temporary reinstatement under Section 105(c)(2); Section 3(g) of the Mine Act defines a “miner” as “any individual working in a . . . mine.” The Commission held that under the circumstances -- where the allegation of discrimination related back to and was connected with events that took place when the individual was actively working at the mine -- the individual was a “miner” within the meaning of Section 105(c)(2).
Cumberland Coal Res., L.P. v. FMSH RC, 717 F.3d 1020 (D.C. Cir. 2013). On June 7, 2013, the United States Court of Appeals for the District of Columbia Circuit issued a decision upholding the Secretary's interpretation that, in evaluating the significant and substantial nature of violations of standards that come into play only in the event of an emergency, one must assume the occurrence of the emergency. The Court stated, "As the Commission explained, emergency safety standards are fundamentally different from non emergency standards because they are designed to apply meaningfully only in times of emergency."
Big Ridge, Inc., FMSHRC No. LAKE 2009-377 etc. On June 4, 2013, the Commission issued a decision in this case involving four violations consisting of accumulations of combustible materials in an underground coal mine. The Commission affirmed the one violation disputed on appeal, affirmed all three significant and substantial designations disputed on appeal, affirmed three of four unwarrantable failure designations disputed on appeal, and vacated the fourth unwarrantable failure designation.
Resolution Copper Mining, LLC, OALJ No. 2012-MSA-1. On May 31, 2013, the Assistant Secretary for Mine Safety and Health issued a decision in this petition for modification proceeding involving an underground coal mine operator's petition to modify the mine-specific application of an MSHA standard limiting the speed of a bucket used to hoist personnel. An administrative law judge at the U.S. Department of Labor's Office of Administrative Law Judges ruled that the personnel conveyance in question was not a bucket within the meaning of the standard, therefore, the standard was inapplicable to the conveyance. On appeal, the Assistant Secretary vacated the judge's ruling that the standard was inapplicable, and remanded the case to the judge for determination of whether the application of the standard should be modified.
Stansley Mineral Resources. Inc.. FMSHRC No. LAKE 2011-693-M. On May 9, 2013, the Commission issued a decision holding that the $2,000 penalty minimum that the MINER Act specifies for violations under Section 104(d)(1) of the Mine Act (which prescribes enhanced enforcement sanctions for initial violations that constitute an unwarrantable failure to comply with a mandatory standard) applies not only to the Secretary's proposal of penalties but also to the Commission's assessment of penalties.
Secretary of Labor on behalf of Dustin Rodriguez v. C.R. Meyer and Sons Co., FMSHRC No. WEST 2013-618-DM. On April 26, 2013, the Commission denied the mine operator's request for a stay of a judge's order that it temporarily reinstate a miner whose discrimination complaint the judge had found to be non-frivolous. The operator, in violation of the Commission's temporary reinstatement rules, had refused to comply with the judge's order. In denying the operator's stay request, the Commission ordered the operator to comply with the judge's order immediately. On May 10, 2013, the Commission held that the judge erred in excluding the operator's evidence that the discharged miner's temporary reinstatement should be tolled because of a post-discharge layoff. The Commission remanded the case to the judge for consideration of the operator's evidence subject to the "not frivolously brought" standard statutorily established for temporary reinstatement proceedings.
Big Ridge, Inc. v. FMSHRC, 715 F.3d 631 (7th Cir. 2013). On Apri1 26, 2013, the United States Court of Appeals for the Seventh Circuit issued a decision upholding MSHA's Part 50 audit information requests to several mine operators. The requests sought injury and illness data, and were made as part of an audit designed to ensure that operators were reporting injuries and illnesses accurately. The Court held that "MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators' injury reports and in issuing citations and monetary penalties when mine operators refused to comply."
Cumberland River Coal Co. v. FMSHRC, 712 F.3d 311 (6th Cir. 2013). On April 4, 2013, the United States Court of Appeals for the Sixth Circuit issued a decision affirming a Federal Mine Safety and Health Review Commission administrative law judge's conclusion that the mine operator violated Section 105(c) of the Mine Act by discharging Charles Scott Howard, a long-time and prominent safety and health activist. The Court affirmed the judge's findings that Howard was discharged at least in part because of his protected activities and that the operator's justification for the discharge (i.e., Howard suffered a brain injury that rendered him unfit to return to work) was weak, outside of normal business practices, and pretextual. The Court also affirmed the judge's action in ordering that Howard be reinstated despite his injury.
Oak Grove Resources, LLC v. Secretary of Labor, D.C. Cir. No. 12-1223 (Mar. 29, 2013) (unpublished). On March 29, 2013, the United States Court of Appeals for the District of Columbia Circuit issued a decision denying the mine operator's petition for review of an order of the Federal Mine Safety and Health Review Commission, which fined the operator for violating a mandatory standard requiring that each return air course in an underground coal mine be examined in its entirety every 7 days.
Wolf Run Mining Co., FMSHRC No. WEVA 2008-1265. On March 20, 2013, the Commission issued a decision addressing the meaning of the phrase "repeated failure to make reasonable efforts to eliminate a known violation of a mandatory standard" in the "flagrant violation" provision of the Mine Act. The Commission held that the Secretary may permissibly consider a mine operator's past violation history in applying the phrase, and remanded the case to the judge for further proceedings.
Lone Mountain Processing, Inc. v. Secretary of Labor, 709 F.3d 1161 (D.C. Cir. 2013). On March 19, 2013, the United States Court of Appeals for the District of Columbia Circuit issued a decision vacating and remanding a Federal Mine Safety and Health Review Commission decision denying the mine operator's request that the Commission reopen a proposed penalty assessment that became a final order because the operator failed to contest it. The Court remanded the case to the Commission for consideration of the fact that the operator had contested the underlying citation.
Northshore Mining Co. v. Secretary of Labor, 709 F.3d 706 (8th Cir. 2013). On March 8, 2013, the United States Court of Appeals for the Eighth Circuit issued a decision regarding the interpretation of 30 C.F.R. § 56.12016, which applies to surface metal and nonmetal mines, stating, in part, "Electrically powered equipment shall be deenergized before mechanical work is done on such equipment." Following the Phelps Dodge decision of the United States Court of Appeals for the Ninth Circuit, the Eighth Circuit held that the standard applies only to repair or maintenance work that poses a hazard of electrical shock and not to repair or maintenance work that poses a hazard of mechanical movement.
United States v. D&C Mining Corp.. Civil Action No. 12-46 GFVT. On March 4, 2013, the United States District Court for the Eastern District of Kentucky entered a default judgment against D&C Mining Corporation, ordering it to pay $1.6 million in outstanding penalties and $423,000 in interest. In addition, the Court enjoined D&C from failing to pay its current and any future delinquent penalties. The Court also ordered D&C to post an appropriate bond to ensure its payment of any future penalties, and ordered D&C not to remove its equipment from the mine.
Secretary of Labor on behalf of Russell Ratliff v. Cobra Natural Res.. LLC. FMSHRC No. WEVA 2013-368-D. On February 28, 2013, the Commission issued a decision in this temporary reinstatement case. On October 17, 2012, the complainant was discharged, on November 16, the mine operator announced that it was instituting a layoff, and on January 15, 2013, the operator laid off 14 employees. The Commission held that the operator's argument that any temporary reinstatement of the complainant should be tolled as of January 15 since he would have been included in the layoff was proper in the temporary reinstatement proceeding because the inclusion ofthe complainant in the layoff was itself potentially a discriminatory action. The Commission affirmed the judge's conclusion that the claim that the complainant was discriminatorily included in the layoff was not frivolously brought.
The American Coal Co., FMSHRC No. LAKE 2010-408-R. On February 28, 2013, the Commission issued a decision addressing the meaning of the term "mine fire" in the definition of "accident" in Section 3(k) of the Mine Act. The Commission accepted the Secretary's interpretation that the term includes both events marked by flaming combustion and events marked by smoldering combustion that reasonably has the potential to burst into flame.
Clintwood Elkhorn Mining Co., FMSHRC No. KENT 2011-40-R etc. On February 25, 2013, the Commission issued a decision reversing a judge and affirming a violation of30 C.F.R. § 77.1607(b) consisting of a driver's loss of control of a truck driving down a hill at a coal preparation plant. The Commission held that the standard is violated when the driver loses control of the equipment (and does not, as the judge held, require the Secretary to establish why the driver lost control) and that MSHA may issue a citation for a violation that has expired (and is not, as the judge held, limited to issuing citations for violations that still exist).
Manalapan Mining Co., FMSHRC No. KENT 2008-737. On February 1, 2013, the Commission vacated a judge's decision in which he determined that two violations of 30 C.F.R. § 75.400 for combustible coal accumulations were not the result of the mine operator's unwarrantable failure to comply with the standard, and the Commission remanded the case to the judge for further consideration consistent with its decision.
Black Beauty Coal Co. v. FM SHRC, 703 F.3d 553 (D.C. Cir. 2012). On December 28, 2012, the United States Court of Appeals for the District of Columbia Circuit issued a decision affirming a Federal Mine Safety and Health Review Commission administrative law judge's decision finding that (1) the mine operator committed a violation of 30 C.F.R. § 75.400 consisting of an accumulation of coal around the tail roller of a conveyor belt, (2) the violation constituted an unwarrantable failure to comply with the standard, and (3) the violation reflected high negligence for civil penalty purposes.
Cordero Mining LLC. v. Secretary ofLabor on behalf of Cindy L. Clapp, 699 F.3d 1232 (10th Cir. 2012). On November 15, 2012, the United States Court of Appeals for the Tenth Circuit issued a decision in this discrimination case which arose at a surface coal mine in Wyoming. The discharged miner had worked at the mine for 28 years and had been a vigorous safety advocate on behalf of her fellow miners. The mine operator asserted that the miner's activities concerned productivity, not safety, and that she was discharged for insubordination. The Court rejected the operator's assertions and affirmed the judge's finding of discrimination, the judge's refusal to reduce the backpay award on the ground that the miner failed to make a reasonable effort to find another job, and the judge's doubling of the penalty from $20,000 to $40,000
Vulcan Construction Materials. L.P. v. FMSHRC. 700 F.3d 297 (7th Cir. 2012). On October 25, 2012, the United States Court of Appeals for the Seventh Circuit issued a decision agreeing with North Fork Coal Corporation v. FMSHRC, 691 F.3d 735 (6th Cir. 2012), holding that when the Secretary declines to pursue a miner's discrimination complaint on the merits but the miner pursues it on his own, the Secretary's decision not to proceed on the merits terminates the miner's temporary reinstatement.
Jeroski d/b/a USA Cleaning Service and Building Maintenance v. FMSHRC, 697 F.3d 651 (7th Cir. 2012). On October 11, 2012, the United States Court of Appeals for the Seventh Circuit issued a decision in this Equal Access to Justice Act (EAJA) case. The Court affirmed the judge's decision denying the EAJA application, joining other Circuits in holding that the United States Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598 (2001), applies under EAJA.
|Final Rule — Examinations of Work Areas in Underground Coal Mines for Violations of Mandatory Health or Safety Standards. On April 6, 2012, MSHA published in the Federal Register its final rule entitled "Examinations of Work Areas in Underground Coal Mines for Violations of Mandatory Health or Safety Standards." 77 Fed. Reg. 20,700 (Apr. 6, 2012). The final rule revises MSHA's requirements for pre-shift, on-shift, weekly, and supplemental examinations of underground coal mines to require operators to identify and correct violations of nine specific health or safety standards related to ventilation, methane, roof control, combustible materials, rock dust, other safeguards, and guarding, in addition to hazardous conditions.|
United States v. Craig Belcher. On July 29, 2013, Craig Belcher plead guilty in United States District Court for the Southern District of West Virginia to feloniously providing false statements on documents required to be maintained under the Mine Act. Belcher, who had been hired to work as an underground coal mine foreman at Spartan Mining Company’s Road Fork No. 51 mine, knew that he had not been certified as a foreman by the state of West Virginia when he completed and signed onshift and preshift examination reports between January 2009 and July 2010. Belcher faces a maximum of 5 years in prison and a $250,000 fine at his December 2, 2013, sentencing.
United States v. Manalapan Mining, LLC. On July 11, 2013, Manalapan Mining, LLC, operator of an underground coal mine in eastern Kentucky, was sentenced in United States District Court for the Eastern District of Kentucky, having earlier plead guilty to 2 counts of a multi-count indictment: (1) for willfully allowing miners to work under unsupported roof and (2) for willfully failing to correct hazardous rib conditions before allowing miners to work in the affected area during several weeks in 2011. Three individual agents were previously sentenced on May 29, 2013, in relation to the same crimes. The Court sentenced Manalapan to a $150,000 fine, payable in $5,000 monthly payments, and 3 years of probation.
United States v. Hills Coal Co., Inc. and David Grigsby. On June 25, 2013, a Grand Jury sitting in Abingdon, Virginia handed down a 13-count felony indictment against Hills Coal Company, Inc. and mine foreman David Grigsby at the Tipple #1, an underground coal mine in southwest Virginia. The indictment charges that, on or about April 9, 2009, Hills and Grigsby willfully and falsely represented in the mine’s record book that a required onshift mine examination was conducted, and that from April 1 through April 15, 2009, Hills and Grigsby falsely represented in the record book that all required guards were adequate and ignored the lack of guards on the No. 2 belt line. If convicted, Hills faces a maximum fine of $500,000 on each count and Grigsby faces a maximum sentence of 5 years in prison and a fine of $250,000 on each count.
United States v. Manalapan Mining Co., Inc., Jefferson Davis, Joseph Miniard, and Bryant Massingale. On May 29, 2013, three agents of the mine operator were sentenced in United States District Court for the Eastern District of Kentucky for criminal violations of the Mine Act. Mine operations manager Jefferson Davis had previously plead guilty to a misdemeanor for failing to ensure scoops and mobile bridge-carriers had canopies to protect miners from potential roof falls where the roof was over 42 inches. He was sentenced to probation for 3 years and a $5,000 fine. Mine superintendent Joseph Miniard previously plead guilty to the same misdemeanor for failing to ensure canopies were in place and a felony for failing to note that hazard in the preshift-inspection book. He was sentenced to probation for 3 years with home incarceration for 6 months followed by home detention for 6 months and a $3,000 fine. Foreman Bryant Massingale previously plead guilty to a misdemeanor relating to the failure of the automated temporary roof support system to reach the roof and to a felony for failing to note that hazard in the preshift-inspection book. He was sentenced to probation for 3 years, 6 months of home detention, and a $3,000 fine. The operator will be sentenced on July 11, 2013.
United States v. Ronnie Britton II. On March 20, 2013, a Grand Jury sitting in Charleston, West Virginia handed down a 4-count felony indictment against Ronnie Britton II, a former foreman at Coal River Mining, LLC’s Fork Creek #1 Mine, an underground coal mine in southern West Virginia. The indictment charges that Britton (holding himself out to be a certified mine foreman authorized to conduct preshift and onshift mine examinations while knowing that he was neither so certified nor so authorized) certified preshift or onshift examination reports on or about November 11, 2009, June 29, 2010, October 1, 2010, and December 2, 2010, knowing that all such certifications were false. If convicted, Britton faces a maximum sentence of 5 years in prison and a fine of $250,000 on each count.
United States v. David C. Hughart. On February 28, 2013, David C. Hughart, a former-Massey Energy official and president of White Buck Coal Company, plead guilty in United States District Court for the Southern District of West Virginia to two charges that he plotted with other company officials to violate Mine Act safety standards and cover up the resulting workplace hazards. Hughart admitted that, between 2000 and 2010, he conspired to provide miners with advance notice of MSHA inspections and violated mandatory safety standards. Hughart implicated both higher and lower company officials in the wrongdoing. At sentencing, he faces a maximum of 6 years in prison and a $350,000 fine.
United States v. Gary May.On January 17, 2013, Gary May, a former mine superintendent at the former-Massey Energy’s Upper Big Branch Mine, was sentenced in United States District Court for the Southern District of West Virginia. May previously plead guilty to a 1-count felony information charging that, between February 2008 and April 5, 2010 (when a mine explosion killed 29 miners), he (1) conspired to impede MSHA inspections by giving advance notice, (2) concealed poor airflow, flammable accumulations, and scarce rock dust, and (3) ordered falsification of examination books and tampering with methane detection equipment. May was sentenced to 21 months in prison, followed by 3 years of probation and a $20,000 fine.