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LITIGATION
 

Black Castle Mining Co., FMSHRC Nos. WEVA 2006-891-R etc.  On February 12, 2014, the Commission issued a decision involving a surface coal mine in West Virginia.  A dozer operator drove his dozer into a buried gas pipeline, ruptured the pipeline, and died in the ensuing fire.  MSHA cited the mine operator and a mine supervisor for a violation of 30 C.F.R. 77.1713(a) consisting of failure to conduct an adequate workplace examination, i.e., failure to adequately mark the location of the pipeline.  The Commission affirmed a judge's decision vacating the citation on the ground that the pipeline was not in an "active working area" within the meaning of the standard.

Raw Coal Mining Co. v. Secretary of Labor, -- Fed.Appx. – (4th Cir. 2014).  On February 4, 2014, the United States Court of Appeals for the Fourth Circuit issued a decision affirming a Commission decision denying a mine operator's request to reopen a penalty assessment that became a final Commission order because it was not timely contested.  The operator argued that the Commission erred by failing to consider whether the operator acted in good faith and whether the Secretary would be prejudiced by reopening.  The Court held that the operator's argument was not properly before the Court because it was not raised before the Commission. 

Cobra Natural Resources, LLC v. FMSHRC, -- F.3d – (4th Cir. 2014).  On January 27, 2014, the United States Court of Appeals for the Fourth Circuit issued a decision in a discrimination case.  The case was before the Court on the mine operator's appeal of a Commission decision holding that, when the operator claims during a temporary reinstatement proceeding that the discharged miner's temporary reinstatement should be tolled because the miner would subsequently have been lawfully laid off, the Secretary's claim to the contrary should be evaluated under the "not frivolously brought" standard that traditionally applies in temporary reinstatement proceedings.  The Court held that it did not have jurisdiction to consider the operator's appeal because the Commission's decision did not constitute a final order and did not qualify for review as a non-final order under the collateral order exception to the finality requirement.

Wolf Run Mining Co., FMSHRC Nos. WEVA 2007-600 etc.  On December 23, 2013, the Commission issued a decision involving the mine operator's failure to immediately report the fatal 2006 explosion at the Sago Mine to MSHA and the mine rescue team as required by MSHA accident-reporting regulations.  At issue on appeal were the judge's findings that the violations, though committed, did not involve unwarrantable failures and high negligence.  The Commission held that the judge erred because he (1) miscalculated the time at which the operator's reporting duty commenced, and hence miscalculated the length of the operator's reporting delay; (2) treated the intentional nature of the operator's reporting delay as a mitigating factor; (3) treated the fact that the explosion occurred on a federal holiday as a mitigating factor; and (4) failed to consider the fact that, when the operator finally attempted to report the explosion, it relied solely on an off-site management official who had limited knowledge of the explosion and limited information and resources available to him at home.  The Commission reversed the judge's decision, reinstated MSHA's unwarrantable failure and high negligence designations, and assessed MSHA's proposed penalties. 

Lafarge North America, FMSHRC No. CENT 2010-4-M.  On December 11, 2013, the Commission issued a decision in a fair notice case.  The Commission vacated a judge's decision vacating four safety violations on trucks because the Commission found that, in finding that the operator did not have fair notice of MSHA's position, the judge misapplied the "reasonably prudent person" fair notice test.  The Commission remanded the case to the judge to apply the test correctly. 

Spartan Mining Co., FMSHRC No. 2009-403.  On December 11, 2013, the Commission issued a decision in a significant and substantial ("S&S") case.  The Commission, applying Cumberland Coal Res., L.P. v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013) (directional lifeline decision on assuming the occurrence of an emergency in determining whether a violation of an emergency standard is S&S), upheld the judge's determination that two escapeway violations were S&S.

Revelation Energy, LLC, FMSHRC No. KENT 2011-71-R.  On November 20, 2013, the Commission issued a decision holding that a blasting event that occurred on the mine site, and sent a 2-ton rock flying into a neighboring residential yard off the mine site, was a "mine accident" within the meaning of Sections 3(k) and 103(k) of the Mine Act.  The Commission (1) held that the blasting event was a mine accident, even though "a separate portion of the accident, i.e., the rock entering the yard, occurred outside of the mine," because "the launching of the rock took place inside of the mine;" (2) accepted the Secretary's interpretation that the term "mine accident" in Sections 3(k) and 103(k) encompasses an event "that is similar in nature to, or presents a similar potential for injury or death as, the events specifically listed in Section 3(k)" (i.e., mine explosion, mine ignition, mine fire, or mine inundation); and (3) rejected the contention that, in interpreting Sections 3(k) and 103(k), the Secretary is limited by the definition of "accident" set forth in 30 C.F.R. 50.2(h) (setting forth 12 criteria for determining whether an accident is reportable). 

Mach Mining, LLC, FMSHRC No. LAKE 2009-324-R.  On September 19, 2013, the Commission issued a decision in a case involving an underground coal mine in Illinois.  The Commission, reversing the judge's decision, held that a violation of an MSHA safety standard consisting of failure to record in the weekly examination log that a primary escapeway was cluttered for 120 feet with crib ties, concrete blocks, a gob pile, take-up track, and water was an "unwarrantable failure to comply" within the meaning of the Mine Act.  The Commission reversed the judge's finding of no unwarrantable failure because it reversed the judge's finding that the weekly examiner's belief that the escapeway's condition was not hazardous was objectively reasonable.

Mach Mining, LLC v. Secretary of Labor, 728 F.3d 643 (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).


RULEMAKING

  Notice – Criteria to Certify Coal Mine Rescue Teams.  On December 27, 2013, MSHA published in the Federal Register a notice to inform the public that MSHA updated its underground coal mine rescue team certification criteria.  78 Fed. Reg. 79,010 (Dec. 27, 2013).  The MINER Act requires that all underground coal mines have available two certified mine rescue teams, and requires that MSHA update every 5 years the criteria to certify the qualifications of these teams.  Under MSHA's implementing standards, one of the criteria for a mine operator to certify the qualifications of a coal mine rescue team is that team members are trained annually on advanced mine rescue topics.  MSHA updated the prescribed instruction guides for annual training of coal mine rescue teams to provide more hands-on advanced mine rescue practical skills training to enhance team performance when responding to an actual mine emergency. 

Final Rule – Pattern of Violations ("POV").  On January 23, 2013, MSHA published in the Federal Register a final rule entitled "Pattern of Violations."  78 Fed. Reg. 5,056 (Jan. 23, 2013).  The final rule revises MSHA's regulation to simplify the POV criteria, improve consistency in applying the POV criteria, and more effectively achieve the Mine Act's intent that the POV provision be used to address mine operators who have demonstrated a disregard for the health and safety of miners.


CRIMINAL ACTIVITIES

 
United States v. Oril C. Dent.  On January 24, 2014, a 1-count felony information was filed in the United States District Court for the Southern District of Indiana charging Oril C. Dent, an MSHA-approved safety instructor, with selling training certificates for required annual refresher hazard training to coal haulage truck drivers.  The information alleges that, between October 2011 and April 2012, Dent signed numerous certificates certifying that training had been provided, knowing that no actual training was provided.  If convicted, Dent faces a maximum sentence of 5 years in prison and a fine of $250,000. 

United States v. Craig Belcher.  On January 6, 2014, Craig Belcher was sentenced in the United States District Court for the Southern District of West Virginia, having previously pled guilty to feloniously providing false statements on a document 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.  The Court sentenced Belcher to 21 months in federal prison. 

United States v. Hills Coal Co.; United States v. David Grigsby.  On December 17, 2013, after 2 days of trial before a jury in the United States District Court for the Western District of Virginia, at the conclusion of the government's case, the judge granted a defense motion for a verdict of acquittal of 13 charges against Hills Coal Company, Inc., and mine foreman David Wayne Grigsby.  Grigsby and Hills Coal, through its agent Grigsby, had been charged with willfully failing to provide guarding along a belt conveyor and falsifying the daily examination book by failing to record that the required guarding was not provided.  The judge determined that the government's evidence did not establish that Grigsby knew that the cited area of the belt required guarding; he therefore dismissed the willful failure to provide guarding charge and dismissed all the related falsification charges for Grigsby's failure to record the guarding violations in the examination book.

United States v. AB&J Coal Co.; United States v. Elmer Fuller.  Pursuant to a plea agreement, on November 13, 2013, AB&J Coal Company, Inc., plead guilty in the United States District Court for the Western District of Virginia to a single misdemeanor count of willfully violating Mine Act mandatory safety standards when, in 2009, its agent illegally wired an electrical connection to a belt feeder without any ground fault (short-circuit) protection and without a fire suppression system in the primary escapeway.  At the same proceeding, mine superintendent Elmer Fuller plead guilty to 2 felony counts: (1) for federal tax fraud and (2) for lying to an MSHA investigator when he stated that he had legally wired the referenced belt feeder.

United States v. David C. Hughart.  On September 10, 2013, David C. Hughart, a former Massey Energy official and president of White Buck Coal Company, was sentenced in the Federal District Court for the Southern District of West Virginia after earlier having plead guilty to 2 federal charges that he plotted with other company officials to violate Mine Act safety standards and then cover up the resulting workplace hazards.  Hughart, the highest ranking Massey official to be prosecuted to date, admitted that, between 2000 and 2010, he conspired to provide miners with advance notice of MSHA inspections and violate mandatory safety standards.  Hughart also implicated both higher and lower Massey officials in the wrongdoing.  The Court sentenced Hughart to 42 months in prison followed by 3 years of supervised release (probation). 

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. 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.