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U.S. Department of Labor
Office of the Solicitor
Division of Mine Safety and Health
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Quick Jump - Litigation Rulemaking Criminal Activities Other Activites
| LITIGATION |
Speed Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir. 2008). On June 11, 2008, the United States Court of Appeals for the Fourth Circuit issued a decision on MSHA's enforcement discretion. The case involved MSHA's decision to cite the owner-operator of a mine for violations committed by an independent contractor performing services at the mine. The owner-operator argued that MSHA should have cited only the contractor. The Court ruled that (1) MSHA has the statutory authority to cite an owner-operator, an independent contractor, or both for violations committed by the contractor and (2) MSHA's decision as to which entity or entities to cite is an exercise of its enforcement discretion that neither the Commission nor the Courts can review.
Georgia Constuction Aggregate Association and National Stone, Sand and Gravel Association v. Secretary of Labor; Nyco Minerals, Inc. et al. v. Secretary of Labor, 11th Circuit. On April 25, 2008, MSHA was notified that its new asbestos standard is being challenged in the United States Court of Appeals for the Eleventh Circuit.
Scott Howard v. Chao, 6th Circuit. On March 20, 2008, Scott Howard, a miner represented by Appalachian Citizens' Law Center, filed a petition for writ of mandamus in federal district court in Kentucky. The petition requests that the court require MSHA to promulgate both an emergency temporary standard and a permanent standard setting specified maximums for miner exposure to respirable coal dust and respirable silica dust in underground coal mines. On May 16, 2008, MSHA filed a motion to dismiss for lack of jurisdiction. On June 23, 2008, the district court transferred the petition to the United States Court of Appeals for the Sixth Circuit. On July 14, 2008, MSHA filed a motion to dismiss on the ground that the petitioner failed to exhaust his administrative remedies because he never filed a petition for rulemaking with MSHA.
Plateau Mining Corp. v. FMSHRC, 10th Circuit. On March 17, 2008, the United States Court of Appeals for the Tenth Circuit issued a decision in a case that arose from a fatal methane explosion at the Willow Creek Mine in Utah. MSHA had issued a citation alleging that the operator violated 30 C.F.R. 75.334(b)(1) because the longwall panel's bleeder ventilation system failed to ventilate the worked-out area effectively. The Court ruled that Section 75.334(b)(1) requires a bleeder system to ventilate the worked-out area effectively (not merely to some degree) and the operator's compliance with its MSHA-approved mine ventilation plan does not constitute a defense to an allegation that it violated Section 75.334(b)(1). The Court, however, ruled that, under the specific circumstances of this case, the operator did not have adequate notice that the bleeder system was not ventilating the worked-out area effectively.
Cumberland Coal Resources, LP v. FMSHRC, 3d Circuit. On February 15, 2008, the United States Court of Appeals for the Third Circuit issued a unanimous decision in a case involving a wraparound bleeder ventilation system used to ventilate the gob in a large, underground coal mine in Pennsylvania. MSHA issued three citations alleging that the operator violated 30 C.F.R. 75.334(b)(1) because, on three occasions, the system was not effectively ventilating the gob. The Court upheld all three citations. In doing so, the Court rejected the operator's arguments that (1) compliance with its MSHA-approved ventilation plan constituted a defense to the citations, (2) it did not have adequate notice of what Section 75.334(b)(1) required, and (3) substantial evidence did not support the findings that it violated Section 75.334(b)(1).
National Mining Association v. MSHA, D.C. Circuit. On January 11, 2008, the United States Court of Appeals for the District of Columbia Circuit issued a unanimous decision dismissing the National Mining Association's challenge to MSHA's Emergency Mine Evacuation Rule (EME). The Court upheld MSHA's "hardened room" requirement for additional self-contained self-rescue devices (SCSRs) placed in common caches between adjacent escapeways for operators who choose that option, rather than placing individual caches of SCSRs in each escapeway. The Court held that (1) the final rule was a "logical outgrowth" of the Emergency Temporary Standard, which served as the proposed rule, (2) NMA's challenge to the rule as inconsistent with the MINER Act was waived because NMA never raised the issue before promulgation of the EME, (3) MSHA's hardened room requirement was not arbitrary and capricious because the agency explained in the preamble to the EME its reasoning for the requirement (loss of redundancy of two sets of SCSRs), and (4) NMA's assertion that MSHA failed to make an economic impact analysis under the Regulatory Flexibility Act of the consequences of the hardened room requirement need not be addressed because MSHA properly analyzed the economic impact of the primary compliance method, to which NMA did not object.
Jim Walter Resources, Inc. v. MSHA, D. Ala. On January 4, 2008, Jim Walter Resources, Inc. (JWR) and two employees filed a suit in federal district court in Alabama regarding MSHA's accident report of the 2001 multi-fatality explosion in the No. 5 underground coal mine in Brookwood, Alabama. The suit requested that the court order MSHA to revise the accident report to reflect that certain conclusions in the report were rejected by the Federal Mine Safety and Health Review Commission in a subsequent enforcement action. On February 28, 2008, following implementation of MSHA's new policy of providing website links to subsequent Commission and court decisions in fatal accident cases, JWR filed a motion for voluntary dismissal of its suit. On February 29, 2008, the suit was dismissed.
Empire Iron Mining Partnership, FMSHRC No. LAKE 2006-60-RM. On December 28, 2007, the Commission issued a decision in this case which arose when equipment that a miner was trying to free from a stuck position moved and killed him. MSHA issued a citation alleging a violation of 30 C.F.R. 56.12016 (failure to deenergize and lock out electrically-powered equipment before performing mechanical work) and, in the alternative, a violation of 30 C.F.R. 56.14105 (failure to turn off power and block equipment against motion before performing repairs or maintenance). MSHA cited in the alternative because, although it believes that Section 56.12016 applies even when the hazard posed is equipment movement rather than electrical shock, the Ninth Circuit in Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th Cir. 1982), held to the contrary. Before the Commission, MSHA argued that (1) MSHA is authorized in appropriate circumstances to cite violations in the alternative (the operator argued that a citation can allege only one violation and that a citation alleging more than one violation is invalid); (2) the operator violated Section 56.14105; and (3) in the alternative, the operator violated Section 56.12016 (MSHA argued that the Ninth Circuit decided Phelps Dodge incorrectly). By a two-to-one vote, the Commission agreed with MSHA on the first two issues and affirmed the citation. The majority declined to reach the third issue, but indicated in dictum that it agreed that the Ninth Circuit decided Phelps Dodge incorrectly.
Emerald Coal Resources/Cumberland Coal Resources, FMSHRC No. PENN 2007-251-E and 252-E. On December 21, 2007, the Commission issued a decision in the first Emergency Response Plan (ERP) dispute to be litigated under the MINER Act. By a two-to-one vote, the Commission found, in agreement with the administrative law judge, that the MSHA District Manager acted properly in requiring the mine operators to submit purchase orders for refuge chambers providing post-accident breathable air within 2 days after approval of their ERPs. In so finding, the Commission majority (1) found that the District Manager's actions were to be reviewed under the deferential arbitrary and capricious standard of review; (2) found that the District Manager's actions were not arbitrary and capricious; (3) rejected the operators' arguments that the breathable air provisions of the MINER Act are unconstitutionally vague; and (4) rejected, on procedural grounds, the operators' argument that MSHA's treatment of them denied them equal protection.
American Coal Co., FMSHRC No. LAKE 2005-129, etc. On December 19, 2007, the Commission issued a decision in this case involving whether the operator of an underground coal mine violated 30 C.F.R. 75.380(a), which required it to provide escapeways from the working section, because the escapeways in question, although themselves passable, were inaccessible due to the location of mining equipment. The Commission unanimously held that the operator violated the standard and that the operator had adequate notice of what the standard required.
Austin Powder Co., FMSHRC No. CENT 2006-128-M. On November 30, 2007, the Commission issued a decision in this case affirming two citations alleging violations of MSHA's standards for storing detonators. The Commission agreed with MSHA that the plain language of MSHA's explosives standards requires non-mass detonating detonators to be stored in magazines as that term is defined in MSHA's standards, and rejected the argument that MSHA's standards adopted the Bureau of Alcohol, Tobacco and Firearms (BATF) storage requirements.
Salt Lake Tribune v. Chao, D. Utah. On November 7, 2007, the plaintiffs in this case (Salt Lake Tribune, CNN, AP, and others) withdrew their complaint seeking access to the Crandall Canyon witness interviews still to be conducted and transcripts of the interviews already conducted. On October 9, 2007, the federal district court in Utah had denied the request of several news organizations for a preliminary injunction concerning the Crandall Canyon accident investigation. The plaintiffs had requested that the court order MSHA to (1) stop conducting witness interviews without opening the interviews to the media and (2) provide the media with transcripts of closed interviews already conducted. The court ruled that neither the Mine Act nor the First Amendment gives the media a right of access to the interviews. The court, distinguishing a prior Utah district court opinion granting access to interviews regarding a 1986 mine accident, stressed that the interviews here are not public, i.e., not open to any entity other than federal and state government representatives.
National Mining Association v. Secretary of Labor, D.C. Circuit. On August 22, 2007, the United States Court of Appeals for the District of Columbia Circuit granted the National Mining Association's (NMA's) motion for voluntary dismissal of its challenge to MSHA's Program Information Bulletin (PIB) regarding the MINER Act's requirement that Emergency Response Plans (ERPs) provide for emergency supplies of breathable air in underground coal mines. The NMA moved to dismiss after MSHA, pursuant to a settlement agreement, issued a Procedure Instruction Letter (PIL) reiterating that the PIB is a non-binding guidance statement.
Marfork Coal Co., FMSHRC No. WEVA 2006-788-R. On August 15, 2007, the Commission issued a decision addressing a novel question regarding mine operator contests of MSHA citations. The operator contested an MSHA citation, but indicated that it did not intend to proceed to a hearing until MSHA issued the associated penalty proposal. The administrative law judge dismissed the contest citation on the theory that it served no purpose, and the operator appealed. The Commission held that judges have discretion to manage their caseloads but the judge abused his discretion in this case. The Commission also set forth a general policy that the chief judge is to automatically stay all citation contests until the associated penalty proposals are issued, but that an operator may ask to have the stay lifted if it wants to proceed to an immediate hearing.
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| RULEMAKING |
Proposed Rule - Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining. On June 19, 2008, MSHA published in the Federal Register its proposed rule entitled "Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining." 73 Fed. Reg. 35,026 (June 19, 2008). It proposes new standards for conveyor belt flammability; qualifying Atmospheric Monitoring System operators; levels of respirable dust in belt entries; airlocks between air courses; minimum and maximum air velocities; approval for the use of air from the belt entry to ventilate working sections; monitoring and remotely closing point-feed regulators; smoke sensors; standardized tactile signals on lifelines; replacing point-type heat sensors with carbon monoxide sensors; and belt conveyor and belt entry maintenance.
Proposed Rule - Refuge Alternatives for Underground Coal Mines. On June 16, 2008, MSHA published in the Federal Register its proposed rule entitled "Refuge Alternatives for Underground Coal Mines." 73 Fed. Reg. 34,140 (June 16, 2008). The proposal would implement Section 13 of the MINER Act. The proposal contains requirements for refuges intended to maintain miners trapped underground following an accident, but would not require replacement of state-approved refuges or refuges in approved Emergency Response Plans for a period of up to 10 years. In addition to requirements for breathable air, the proposal contains requirements for refuge components including carbon dioxide and other harmful gas removal systems, and food, water, lighting, and first aid and sanitation supplies. The proposed rule includes requirements for testing and approval of refuge alternatives; requirements for the availability and maintenance of refuge alternatives and communication facilities for refuge alternatives; and requirements for miners to be trained in the location, use, maintenance, and transportation of refuge alternatives.
Final Rule - Sealing of Abandoned Areas. On April 18, 2008, MSHA published in the Federal Register its final rule entitled "Sealing of Abandoned Areas." The rule replaces MSHA's Emergency Temporary Standard addressing this subject published on May 22, 2007. Among other things, the rule establishes strength requirements for seals and sampling requirements for ascertaining the explosive potential of atmospheres contained in sealed areas. When explosive atmospheres are detected in sealed areas, miners must be evacuated from the entire mine unless the District Manager has pre-approved a different affected area.
Final Rule - Asbestos Exposure Limit. On February 29, 2008, MSHA published in the Federal Register its final rule entitled "Asbestos Exposure Limit." The rule lowers MSHA's 8-hour, time-weighted average, full-shift permissible exposure limit (PEL) of 2 fibers per cubic centimeter of air (f/cc) to 0.1 f/cc. In addition, the rule lowers the excursion limit. The prior excursion limit for metal and nonmetal mines had been 10 fibers per milliliter (f/mL) for 15 minutes; for coal mines the excursion limit had been 10 f/cc over a total of 1 hour in each 8-hour day. This rule lowers these excursion limits to 1 f/cc for 30 minutes. The new PELs are the same as proposed and are the same as OSHA's asbestos exposure limits.
Final Rule - Mine Rescue Teams. On February 8, 2008, MSHA published in the Federal Register its final rule entitled "Mine Rescue Teams." The final rule incorporates the MINER Act's requirements to improve mine rescue service generally, including improving response time and increasing the quantity and quality of mine rescue team training.
Direct Final Rule - Criteria and Procedures for Proposed Assessment of Civil Penalties. On February 7, 2008, MSHA published in the Federal Register its direct final rule entitled "Criteria and Procedures for Proposed Assessment of Civil Penalties." The rule implements statutory inflation adjustment requirements to increase three maximum penalty limits established under the Federal Mine Safety and Health Act of 1977. Specifically, it increases the maximum civil penalty of $60,000 (for non-flagrant violations) to $70,000, the maximum daily penalty for failure to abate a violation from $6,500 to $7,500, and the penalty for smoking or carrying smoking materials from $275 to $375. MSHA last adjusted its statutory maximum penalties for inflation in 2003.
Emergency Temporary Standard - Sealing of Abandoned Areas. On December 19, 2007, MSHA reopened the comment period for the Emergency Temporary Standard (ETS) "Sealing of Abandoned Areas" of underground coal mines published in the Federal Register on May 22, 2007, to provide 30 days for commenters to review and submit comments on the Army Corps of Engineers' final draft report entitled "CFD Study and Structural Analysis of the Sago Mine Accident." The ETS, which was effective immediately upon publication, includes requirements to strengthen the design, installation, construction, maintenance and repair of seals for underground coal mines, as well as requirements for sampling and controlling atmospheres behind the seals. On January 15, 2008, MSHA held a public hearing on the ETS in Arlington, Virginia.
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| CRIMINAL ACTIVITIES |
United States v. Ireland Williams. On March 3, 2008, Ireland Williams, former owner of James H. Taylor Mining Inc.'s No. 1 Mine, was sentenced in United States District Court for the Eastern District of Kentucky (Pikeville). A jury earlier convicted Williams of three counts: (1) mining deep cuts in violation of the mine's roof control plan, (2) mining excessive widths in violation of the mine's roof control plan, and (3) failing to clean up coal dust accumulations. Williams was sentenced to 18 months in prison, a $3,000 fine, and 1 year probation, during which he is forbidden to engage in underground coal mining.
United States v. Monroe Maynard. On January 22, 2008, Monroe Maynard, a former mine foreman at James H. Taylor Mining Inc.'s No. 1 Mine in Pike County, Kentucky was sentenced in United States District Court for the Eastern District of Kentucky (London), having previously plead guilty to one misdemeanor count of knowingly failing to clean up coal dust accumulations. Maynard was sentenced to 3 months in prison followed by 1 year supervised release and a $25 fine. As a special condition, the Court ordered that Maynard not be affiliated with the mining industry in any capacity during his probation.
United States v. Ireland Williams. On December 7, 2007, a federal jury in the United States District Court for the Eastern District of Kentucky (Pikeville) reached a verdict in the case against Ireland Williams, former owner of James H. Taylor Mining Inc.'s No. 1 underground coal mine. The jury convicted Williams of three counts of the indictment: (1) mining deep cuts in violation of the mine's roof control plan, (2) mining excessive widths in violation of the mine's roof control plan, and (3) failing to clean up coal dust accumulations. The jury acquitted Williams of three counts of the indictment: (1) mining into old works without an approved plan, (2) failing to electronically connect required fire sensors along the belt line, and (3) allowing miners to carry smoking materials and smoke in the mine. At his March 3, 2008, sentencing, Williams faces a maximum sentence of 1 year in prison and a $100,000 fine on each count of which he was convicted.
United States v. Monroe Maynard. On October 23, 2007, Monroe Maynard, a former mine foreman at James H. Taylor Mining, Inc.'s No. 1 Mine, an underground coal mine located in Pike County, Kentucky, plead guilty to one count of failing to clean up coal dust accumulations in United States District Court for the Eastern District of Kentucky (London). Maynard is expected to testify against one or more co-defendants if their cases come to trial. At his sentencing, scheduled for January 22, 2008, Maynard faces a maximum sentence of 1 year in prison and a $100,000 fine.
United States v. Ireland Williams, Monroe Maynard, Mitch Lester, Dean Francis, Bill Vanover. On August 2, 2007, a federal Grand Jury sitting in the Eastern District of Kentucky returned a six-count indictment against the former owner and operators of James H. Taylor Mining, Inc.'s No. 1 Mine, an underground coal mine located in Pike County, Kentucky. Former mine owner Ireland Williams, former mine foreman Monroe Maynard, former mine managers Mitch Lester and Dean Francis, and former mine section foreman Bill Vanover were alleged to have knowingly committed violations of Mine Act safety standards relating to (1) mining deep cuts in violation of the mine's roof control plan, (2) mining excessive widths in violation of the mine's roof control plan, (3) mining into old works without an approved plan, (4) failing to clean up coal dust accumulations, (5) failing to electronically connect required fire sensors along the belt line, and (6) allowing miners to carry smoking materials and smoke in the mine. If convicted, the defendants face a maximum sentence of 1 year in prison and a $100,000 fine on each count.
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| OTHER ACTIVITIES |
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S-MINER Act - Pending Legislation. On January 16, 2008, the House passed H.R. 2768, the Supplemental Mine Improvement and New Emergency Response (S-MINER) Act of 2007. The S-MINER bill creates additional protections for miners and clarifies provisions of the MINER Act, which Congress passed following the Sago, Aracoma, and Darby mine disasters. The S-MINER bill aims to improve mine safety in the wake of the Crandall Canyon mine collapse. The bill will now move to the Senate. The White House has indicated that President Bush would likely veto the S-MINER bill if Congress approves it in its current form.
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