Secretary of Labor on behalf of Robert Nickoson v. Mammoth Coal Co., FMSHRC No. WEVA 2012-1069-D. On June 21, 2012, the Commission issued a decision upholding the judge's decision ordering that a coal preparation plant and tipple provide temporary economic reinstatement to a miner who engaged in protected safety activity.
Big Ridge, Inc. et al., FMSHRC Nos. LAKE 2011-116-R etc. On May 24, 2012, the Commission issued a decision holding that several mine operators violated 30 C.F.R. § 50.41 when they refused to provide MSHA with medical and payroll records that MSHA had requested as part of an audit to determine compliance with MSHA's Part 50 accident, injury, and illness reporting requirements. The decision holds that: (1) MSHA has the authority under Section 103(h) of the Mine Act and 30 C.F.R. § 50.41 to inspect and copy records not specifically required to be maintained by the Mine Act or MSHA's regulations; (2) the records that MSHA had requested were relevant and necessary to determine compliance with the Part 50 reporting requirements; and (3) MSHA's request did not violate privacy rights, the Fourth Amendment protection against warrantless searches, or the Fifth Amendment right to due process.
Ernest Matney, employed by Knox Creek Coal Corp., FMSHRC No. VA 2008-215. On April 25, 2012, the Commission issued a decision in this case involving agent personal liability arising under Section 110(c) of the Mine Act. The Commission reversed the judge's findings that maintenance shift section foreman Ernest Matney was not personally liable under Section 110(c) for two safety violations: (1) a violation consisting of failure to conduct an adequate pre-shift examination and (2) a violation consisting of failure to protect persons from roof and rib falls.
Mainline Rock and Ballast, Inc. v. Secretary of Labor et al., No. 11-9525 (10th Cir. Apr. 4, 2012). On April 4, 2012, the United States Court of Appeals for the Tenth Circuit issued a decision in this case involving a mine accident in which a miner cleaning under a conveyor belt at a quarry was pulled head-first through a roller. The Court affirmed the judge's findings that (1) the mine operator violated 30 C.F.R. § 56.14107(a) by failing to install a guard around the roller and (2) the mine operator violated 30 C.F.R. § 50.10 by failing to report the accident to MSHA within 15 minutes.
Bill Simola, employed by United Taconite LLC, FMSHRC No. LAKE 2010-128-M. On March 7, 2012, the Commission issued a decision holding that agents of limited liability companies (LLCs) can be personally liable under Section 110(c) of the Mine Act for mine operators' knowing violations, even though Section 110(c) by its terms applies to violations by a "corporation" and agents of a "corporate operator." The Commission held that, for purposes of Section 110(c), agents of LLCs should be treated the same way that agents of corporations are treated.
North American Drillers, LLC, FMSHRC Nos. LAKE 2008-2-R and LAKE 2008-98. On February 15, 2012, the Commission issued a decision involving several declaratory relief issues. The Commission held that (1) once a citation is contested, the Commission has the authority to entertain a request for declaratory relief even after MSHA vacates the citation (the Commission reaffirmed previous holdings that it does not have the authority to review the vacatur itself) but (2) in this case, the request for declaratory relief was moot, and (3) even if the request for declaratory relief was not moot, declaratory relief was not warranted under the circumstances.
Lakeview Rock Products, Inc., FMSHRC No. WEST 2010-1856-RM. On December 16, 2011, the Commission issued a decision in this case involving three sand and gravel quarries. MSHA had issued a citation alleging a violation of 30 C.F.R. § 56.9300(b)'s requirements that (1) berms or guardrails be provided on the banks of roadways where there is a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment and (2) such berms or guardrails be at least mid-axle height of the largest self-propelled equipment that usually travels the roadway. The operator's elevated truck scales had only 8-inch-high rubrails – a height far short of the 24-inch-high mid-axle height of the largest trucks that used the scales. The judge, however, vacated the citation on the ground that, given the presence of the rubrails, the drop-off did not present a hazard. The Commission remanded the case to the judge to determine whether the operator had disputed that, independent of the presence of the rubrails, the drop-off presented a hazard and, if so, whether MSHA could carry its burden of proof with respect to that question.
Pattison Sand Co. v. FMSHRC and MSHA, N.D. Iowa No. C11-1051-LRR. On December 2, 2011, the plaintiff filed a complaint in United States District Court for the Northern District of Iowa alleging that, inter alia, MSHA has a pattern and practice of abusing its enforcement authority by issuing improper withdrawal orders. On December 27, the plaintiff filed a motion for temporary restraining order (TRO) and preliminary injunction (PI), requesting that MSHA be enjoined from enforcing a Section 103(k) order. On December 30, the judge issued an order denying the TRO and PI, holding that the court lacks jurisdiction over the motion. On January 6, 2012, the plaintiff filed a motion to reconsider, which was denied. On January 26, the plaintiff filed a petition for interlocutory review with the United States Court of Appeals for the Eighth Circuit. On February 6, the United States Department of Justice filed a motion to dismiss the District Court case. On February 10, the plaintiff filed a motion to stay pending interlocutory appeal, which was granted. Oral argument scheduled for May 16.
Oak Grove Resources, LLC, FMSHRC No. SE 2010-350-R. On November 10, 2011, the Commission issued a decision involving an underground coal mine, holding that the operator's violation of 30 C.F.R. § 75.334(d), which consisted of failure to examine the bleeder system in its entirety, was an unwarrantable failure to comply within the meaning of the Mine Act. In so holding, the Commission found that the violation was extensive, had existed for a long period of time, posed a high degree of danger, was obvious and known to the operator, and was accompanied by insufficient efforts at pre-citation abatement.
Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197 (D.C. Cir. 2011). On November 4, 2011, the United States Court of Appeals for the District of Columbia Circuit issued a decision holding that Section 314(b) of the Mine Act is a mandatory standard within the meaning of the Act, so that safeguard violations can be designated as significant and substantial (S&S). Section 314 specifies a series of transportation-related safeguards which underground coal mine operators are required to provide. Section 314(b) requires operators to provide other mine-specific safeguards embodied in safeguard notices issued by individual MSHA inspectors. An S&S designation subjects an operator to elevated enforcement sanctions. A violation can be designated S&S only if it is a violation of a mandatory standard.
CAM Mining, LLC, FMSHRC Nos. KENT 2009-444 etc. On October 28, 2011, the Commission issued a decision in this case involving a series of late-filed penalty petitions that had previously been accepted by the chief judge but then dismissed by another judge. The Commission granted MSHA's appeal, vacated the judge's decision, and remanded the case for further proceedings.
Jim Walter Resources, Inc., FMSHRC Nos. SE 2008-962-R etc. On October 28, 2011, the Commission issued a decision in this case involving cross-motions for summary decision addressing only the issue of violation but not the issues of S&S and unwarrantable failure. The judge, however, decided all three issues, finding an S&S violation and rejecting the unwarrantable failure designation. The Commission vacated both the judge's S&S and unwarrantable failure findings and remanded the case for further proceedings.
Secretary of Labor on behalf of Burdette Billings v. Proppant Specialists, LLC, FMSHRC No. LAKE 2011-855-DM. On October 21, 2011, the Commission issued a decision upholding a judge's order requiring temporary reinstatement of a discharged miner. The miner was discharged several days after presenting safety concerns to management and filing a hazard complaint with MSHA, and 1 day after MSHA inspected the mine and cited safety violations. The Commission held that the judge properly found that the miner's discrimination complaint was not frivolously brought and that the defense offered by the operator was beyond the scope of the temporary reinstatement proceeding.
Cumberland Coal Resources, L.P., FMSHRC No. PENN 2008-189. On October 5, 2011, the Commission issued a decision reversing a judge's determination that four lifeline violations were not significant and substantial (S&S). The Commission's decision, in effect, accepts the Secretary's argument that, in determining whether a violation of an evacuation standard is S&S, one must assume the occurrence of an emergency requiring an evacuation.
Nally & Hamilton Enterprises, Inc., FMSHRC No. KENT 2008-712. On August 11, 2011, the Commission issued a decision involving an MSHA standard that requires warning devices on equipment at surface coal mines to be maintained in functional condition. Although it was undisputed that the back-up warning device on a truck was not functioning at the time that the citation was issued, the judge found that MSHA failed to establish that the standard was violated because it failed to establish how long the operator knew that the device was nonfunctioning and, hence, how long the operator had to correct the defect. The Commission unanimously held that the standard was violated because the standard does not contain a knowledge-and-opportunity-to-correct element, i.e., it is a strict liability standard. The Commission remanded the case to the judge for a determination of whether the violation was significant and substantial within the meaning of the Mine Act and assessment of a penalty.
Big Ridge, Inc. et al., FMSHRC Nos. LAKE 2011-116-R etc. On August 5, 2011, the Commission denied the operators' application for temporary relief in these Part 50 audit cases. On May 20, 2011, a judge issued two decisions finding that a number of underground coal mine operators violated 30 C.F.R. § 50.41 by refusing to comply with MSHA's requests to provide payroll records, timesheets, and medical records requested as part of an MSHA audit to determine compliance with MSHA's injury and illness reporting requirements. The operators appealed the judge's decisions and had requested that the Commission grant them temporary relief from MSHA's Section 104(b) withdrawal orders and, in effect, the daily penalties that MSHA is proposing for noncompliance.
Ames Construction, Inc., FMSHRC No. WEST 2009-693-M. On July 25, 2011, the Commission issued a decision holding that, under the Mine Act, an independent contractor performing services at a mine is strictly liable for a violation committed by a third party when the violation occurs in connection with an activity for which the independent contractor has supervisory responsibility. This case arose when a truck driver unloading pipes from his truck was fatally struck after he loosened a pipe before the pipe was adequately secured. MSHA issued a citation to the independent contractor who was responsible for the unloading. The operator had argued that, since it did not have a contractual relationship with the trucking company, it could not be held liable for the truck driver's conduct.
Elk Run Coal Co. et al. v. U.S. Department of Labor, D.D.C. No. 10-01056-RJL. On July 22, 2011, the United States District Court for the District of Columbia heard oral argument on the Secretary of Labor's Motion to Dismiss. The plaintiffs, 14 mines formerly owned and operated by Massey Energy Co., allege that the Mine Act and its implementing regulations violate the U.S. Constitution's Due Process Clause by failing to impose a deadline for MSHA's review of ventilation plans, by permitting MSHA to unreasonably refuse to approve plans, and by failing to provide any dispute resolution mechanism. The plaintiffs seek injunctive and declaratory relief. On August 18, the Court entered an order dismissing most of the claims. However, the Court is allowing others to proceed because the pattern and practice claims present broad, systemic constitutional challenges to the Mine Act and MSHA's administration of it is not tied to any individual enforcement actions.
|
