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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 |
Secretary of Labor on behalf of Robert Gatlin v. KenAmerican Resources, Inc., FMSHRC No. KENT 2009-1418-D. On October 8, 2009, the Commission issued a decision in this case in which the mine operator had asked it to suspend a judge's temporary reinstatement order on the ground that, after the order was issued, the operator instituted an economic layoff which included the reinstated miner. The Commission remanded the case to the judge for a hearing on the operator's claim, specifying the burden is on the operator to prove the miner's layoff was "entirely unrelated" to his protected activities and rejecting the operator's request that it stay the temporary reinstatement order pending resolution of the claim.
Consolidation Coal Co. v. Solis, N.D.W.Va. No. 5:09-CV-35. On October 1, 2009, Consolidation Coal Co. filed a stipulated dismissal in the United States District Court for the Northern District of West Virginia in a suit to enjoin MSHA from asserting Mine Act coverage over the dock at the Ireland River loading facility. The mine operator had also sought to compel OSHA to assert coverage over the facility. In December 2008, a miner had drowned while loading coal on a barge at the facility. The U.S. Attorney had filed a motion to dismiss, stating there was no subject matter jurisdiction to hear such a claim in federal court, mandamus was not available to compel OSHA to assert coverage since there was no failure by OSHA to carry out a mandatory non-discretionary duty, and the matter was not ripe for decision.
Laine Adair v. MSHA, D.D.C. No. 1:08-CV-01573. On September 23, 2009, the United States District Court for the District of Columbia denied plaintiff Laine Adair's request for a transcript of his interview with MSHA following accidents at the Crandall Canyon Mine in 2007, in which nine people died. After MSHA had denied Adair's request under the Freedom of Information Act (FOIA), Adair sued to compel production. The Court rejected Adair's request for the transcript, ruling that it falls within FOIA exemption 7(A), 5 U.S.C. § 552(b)(7)(A), due to an ongoing criminal investigation. The Court also disagreed with Adair's claim that MSHA's promise to provide the transcript at some later point constitutes equitable estoppel against the government since the public interest in preserving the integrity of a pending criminal investigation requires that the transcript be withheld.
Peter J. Phillips v. A&S Construction Co., FMSHRC No. WEST 2008-1057-DM. On September 9, 2009, the Commission issued a decision in this case involving whether, under Section 105(c) of the Mine Act, an order that a miner be temporarily reinstated "pending final order on the complaint" remains in effect if the Secretary decides not to file a complaint on behalf of the miner, i.e., if the Secretary decides not to pursue the discrimination case on the merits. The judge held that the temporary reinstatement order does not remain in effect if the Secretary decides not to pursue the case on the merits. By an evenly divided vote, the Commission let the judge's decision stand.
SPC Investments, LLC, FMSHRC No. SE 2006-148-M etc. On August 6, 2009, the Commission issued a decision in this case which arose when an MSHA inspector declined to let the owner of a limestone quarry accompany him on a first-time inspection of the quarry because the owner (one of three employees) had no mine safety and health training. The judge had dismissed all of the citations which the inspector had issued as a result of the inspection on the ground that the inspector had violated the operator's walkaround rights under Section 103(f) of the Mine Act. The Commission reversed and remanded the case to the judge.
Secretary of Labor v. National Cement Company of California, Inc., et al., D.C. Cir. No. 08-1312. On July 21, 2009, the United States Court of Appeals for the District of Columbia Circuit issued a decision in this case involving whether a road that runs over a privately owned ranch and provides access to and from a cement plant that is a mine is a "private road . . . appurtenant to" the mine and, hence, a "mine" itself under Section 3(h) of the Mine Act. In 2007, the Court rejected MSHA's initial interpretation and remanded for MSHA to address several difficulties presented by asserting Mine Act coverage over the road. MSHA reformulated its interpretation and addressed the Court's concerns. In the opinion, the Court held that MSHA's interpretation is reasonable and that MSHA adequately addressed the Court's concerns. The interpretation accepted by the Court is that the Mine Act covers the road itself and covers vehicles on the road only if they are related to mining.
Scott Howard v. Solis, 570 F.3d 752 (6th Cir. 2009). On July 6, 2009, the United States Court of Appeals for the Sixth Circuit issued a decision denying a miner's petition for a writ of mandamus to compel MSHA to promulgate reduced exposure levels for respirable coal dust and respirable silica dust in underground coal mines. The Court denied the petition on the ground that the petitioner failed to exhaust his administrative remedies, i.e., failed to file a petition for rulemaking with MSHA.
Secretary of Labor v. National Cement Company of California, Inc. and Tejon Ranchcorp, D.C. Circuit No. 08-1312. On May 12, 2009, oral argument was held before the United States Court of Appeals for the District of Columbia Circuit. This case involves whether an access road which is used predominantly by trucks going to and from a mine, but is also used by other vehicles and is not owned or exclusively controlled by the mine, is subject to the Mine Act.
Scott Howard v. Solis, 6th Cir. No. 08-5799. On April 29, 2009, oral argument was held before the United States Court of Appeals for the Sixth Circuit. This case involves a petition for writ of mandamus to compel MSHA to establish lower maximum levels for miner exposure to respirable coal dust and respirable silica dust in underground coal mines.
Nelson Quarries Inc., FMSHRC No. CENT 2006-151-M etc. On March 12, 2009, the Commission issued a decision in this case involving an operator of portable limestone plants in Kansas. The Commission held that (1) a safety standard violation of 30 C.F.R. § 56.6130(a) consisting of failure to store shock tubing in a magazine was "significant and substantial" within the meaning of the Mine Act, (2) the operator committed a safety standard violation of 30 C.F.R. § 56.6300(b) consisting of an inexperienced miner using explosives without the presence of an experienced miner, and (3) three foremen involved in the safety standard violations were the operator's agents, a factor that pertained to whether the violations were "unwarrantable failures" within the meaning of the Mine Act.
International Union, United Mine Workers of America v. United States Department of Labor, 554 F.3d 150 (D.C. Cir. 2009). On February 10, 2009, the United States Court of Appeals for the District of Columbia Circuit issued a decision holding that three provisions of MSHA's Mine Rescue Teams rule violated the MINER Act and rejecting the UMWA's challenges to four other provisions. The Court vacated the rule with respect to allowing (1) state-sponsored and mine-site teams to train at covered small mines annually rather than semi-annually, (2) state employees who are members of state-sponsored teams to substitute their job duties for participation in one of the two annually-required mine rescue contests, and (3) state employees who are members of state-sponsored teams to meet the annual requirement to participate in mine rescue contests by serving as judges. The Court affirmed the rule insofar as it (1) permits participation in a mine emergency response development (MERD) exercise to qualify as participation in a mine rescue contest, (2) permits participation in two contests on 2 consecutive days to satisfy the annual requirement of participation in two contests, (3) requires operators, rather than MSHA, to certify that their rescue teams meet the MINER Act's and the rule's criteria, and (4) requires that at least a portion, rather than a specific number of hours, of every team's training at covered mines be conducted underground.
Secretary of Labor on behalf of Lawrence L. Pendley v. Highland Mining Co., FMSHRC No. KENT 2006-506-D etc. On January 29, 2009, the Commission issued a decision in a discrimination action brought on behalf of a coal miner under Section 105(c) of the Mine Act. By a two-to-one vote, the Commission affirmed the judge's conclusion that the operator justifiably discharged the miner based solely on altercations he had with office staff and another miner rather than because he had made safety complaints. The Commission majority gave the judge's credibility determinations great weight and concluded that, based on the credited testimony, the judge's decision was supported by substantial evidence. However, the dissenting Commissioner concluded that the judge improperly relied, in part, upon a prior disciplinary warning issued to the miner of which the decision-maker was not aware at the time he decided to discharge the miner.
International Union, United Mine Workers of America v. MSHA, D.C. Circuit No. 09-1014. On January 13, 2009, the United Mine Workers of America (UMWA) filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit challenging MSHA's rule regarding refuge alternatives for underground coal mines.
International Union, United Mine Workers of America v. Chao, D.C. Circuit No. 09-1015. On January 13, 2009, the United Mine Workers of America (UMWA) filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit challenging MSHA's rule regarding flame-resistant conveyor belt, fire prevention and detection, and use of air from the belt entry.
Aracoma Coal Co., FMSHRC No. WEVA 2006-654 etc. On December 23, 2008, the Commission's Chief Administrative Law Judge issued a decision approving the largest settlement of civil penalties ever in a Mine Act case. The judge approved a total of $1,700,000 in civil penalties for 1,302 citations issued at two underground coal mines operated by Aracoma Coal Co. in southern West Virginia (the Alma Mine #1 and the Hernshaw Mine), including citations relating to 25 contributory violations cited as a result of MSHA's investigation into the January 19, 2006, fire at the Alma Mine #1 in which two miners lost their lives. On January 22, 2009, the Commission directed the case for review on its own motion.
American Coal Co. v. MSHA, S.D. Ill. On November 17, 2008, American Coal Co. filed a suit in the United States District Court for the Southern District of Illinois concerning alleged MSHA enforcement practices at the Galatia Mine, a large underground coal mine in Illinois. The suit alleges that MSHA has imposed a quota for citations to be issued at the mine, MSHA has inspected the mine without giving the operator an opportunity to have a representative participate, and MSHA has demonstrated animus against the operator.
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| RULEMAKING |
Final Rule - Mine Rescue Teams. On June 17, 2009, MSHA published in the Federal Register its final rule entitled "Mine Rescue Teams." 74 Fed. Reg. 28,606 (June 17, 2009). The final rule requires that mine-site and state-sponsored mine rescue teams train semi-annually at small mines, rather than annually. The existing requirement that these teams train annually at large mines remains unchanged. In addition, state employees who are members of state-sponsored teams now must participate personally in two mine rescue contests annually (instead of one). Judging a contest no longer will be counted as participation. The final rule amends existing standards published February 8, 2008, in response to the United Mine Workers of America (UMWA) challenge in the United States Court of Appeals for the District of Columbia Circuit. International Union, United Mine Workers of America v. United States Department of Labor, 554 F.3d 150 (D.C. Cir. 2009).
Final Rule - Refuge Alternatives for Underground Coal Mines. On December 31, 2008, MSHA published in the Federal Register its final rule entitled "Refuge Alternatives for Underground Coal Mines." 73 Fed. Reg. 80,656 (Dec. 31, 2008). The final rule implements Section 13 of the MINER Act and requires that underground coal mine operators provide refuges to protect miners when an event occurs that makes escape from the mine impossible.
Final Rule - Flame-Resistant Conveyor Belt, Fire Prevention and Detection, and Use of Air from the Belt Entry. On December 31, 2008, MSHA published in the Federal Register its final rule entitled "Flame-Resistant Conveyor Belt, Fire Prevention and Detection, and Use of Air from the Belt Entry." 73 Fed. Reg. 80,580 (Dec. 31, 2008). The final rule contains 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, smoke sensors, standardized tactile signals on lifelines, replacing point-type heat sensors with carbon monoxide sensors, and belt conveyor and belt entry maintenance.
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| CRIMINAL ACTIVITIES |
United States v. David R. Runyon. On July 9, 2009, David R. Runyon, a longwall foreman at Aracoma Coal Co.'s Alma Mine #1, was sentenced in United States District Court for the Southern District of West Virginia. Runyon plead guilty to falsifying the escapeway drill record book on the No. 9 Longwall Panel in 2005. Runyon was sentenced to pay a fine of $1,000 and placed on 1 year probation, and he surrendered his mine foreman certification to the state of West Virginia.
United States v. Ira Sergent, Johnny Osborne, and Reggie Raleigh. On April 16, 2009, Ira Sergent, Johnny Osborne, and Reggie Raleigh, managers at Stillhouse Mining, LLC's Mine No. 1, an underground coal mine in Harlan County, Kentucky, were sentenced in United States District Court for the Eastern District of Kentucky. The men had earlier plead guilty to one count of stopping the mine's main fan for approximately 6 hours on December 3, 2006, while miners worked underground. Osborne and Raleigh were each sentenced to a fine of $2,500. Sergent, who the Court found was more culpable in the commission of the crime, was sentenced to a fine of $5,000 and placed on 6 months of probation.
United States v. Aracoma Coal Co. On April 15, 2009, the United States District Court for the Southern District of West Virginia accepted Aracoma's guilty plea to the 10-count information arising out of the January 19, 2006, fire at the Alma Mine #1, which resulted in the deaths of two miners. In accordance with the plea agreement, the Court sentenced Aracoma to pay a fine of $2,500,000 and placed the mine operator on 3 years of supervised probation.
United States v. David R. Runyon. On January 29, 2009, a grand jury sitting in the United States District Court for the Southern District of West Virginia handed up a 5-count indictment against David R. Runyon, a foreman at Aracoma Coal Co.'s Alma Mine # 1, related to the January 19, 2006, fire that claimed the lives of two miners. Runyon is charged with two misdemeanor counts of failing to conduct mandatory mine evacuation drills and three felony counts of falsifying mine records to show that such drills were conducted when they were not. Runyon faces a maximum 17 years in prison and a $950,000 fine if convicted.
United States v. Wilbur T. Davis and Robert Clear Coal Corp. On January 22, 2009, Robert Clear Coal Corp., operator of the Big Branch #1 underground coal mine in southwest Virginia, and Wilbur T. Davis, the mine superintendent, were sentenced in the United States District Court for the Western District of Virginia. The mine operator previously plead guilty to willfully violating a mandatory safety standard requiring that each active work area be examined at least once during each working shift by a certified person and that the results of the examination accurately be recorded in a mine record book. Davis previously plead guilty to making a false recording in the mine record book certifying that he had performed a pre-shift examination of the mine, when in fact he had not. The mine operator was sentenced to 3 years probation and ordered to pay a fine of $125,000, of which $57,000 will be paid to a scholarship fund. Davis was sentenced to 2 years supervised probation and ordered to pay a fine of $550.
United States v. Aracoma Coal Co. On December 23, 2008, the United States Attorney for the United States District Court for the Southern District of West Virginia filed a plea agreement in which Aracoma Coal Co. agrees to pay the United States $2,500,000 in criminal fines for 10 counts of criminal misconduct related to the January 19, 2006, fire at the Alma Mine #1 in which two miners lost their lives. On January 14, 2009, Aracoma formally entered its guilty plea. Sentencing is scheduled for April 15, 2009.
United States v. Ira Sergent, Johnny Osborne, and Reggie Raleigh. On December 18, 2008, Ira Sergent, Johnny Osborne, and Reggie Raleigh, managers at Stillhouse Mining, LLC's Mine No. 1, an underground coal mine in Harlan County, Kentucky, plead guilty in the United States District Court for the Eastern District of Kentucky to one count of stopping the mine's main fan for approximately 6 hours on December 3, 2006, while miners worked underground. The defendants each face a maximum sentence of 5 years in prison at sentencing, scheduled for April 16, 2009.
United States v. Wilbur T. Davis and Robert Clear Coal Corp. On October 15, 2008, Robert Clear Coal Corp., operator of the Big Branch #1 underground coal mine in southwest Virginia, and Wilbur T. Davis, the mine superintendent, entered guilty pleas in the United States District Court for the Western District of Virginia. The mine operator acknowledged that on or about January 19, 2007, it willfully violated a mandatory safety standard requiring that each active work area be examined at least once during each working shift by a certified person and the results of the examination accurately be recorded in a mine record book. Davis acknowledged that, at that time, he made a false recording in the mine record book certifying that he had performed a pre-shift examination of the mine when, in fact, he had not. As a consequence, the presence of a gas pipeline remained undisclosed to a miner excavating in the area, resulting in the pipeline being ruptured. Sentencing is scheduled for January 22, 2009.
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| OTHER ACTIVITIES |
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Notice - Wireless Communications and Electronic Tracking Systems Guidance. On December 18, 2008, MSHA published in the Federal Register its notice entitled "Wireless Communications and Electronic Tracking Systems Guidance." 73 Fed. Reg. 77,069 (Dec. 18, 2008). The notice announces the issuance of a Program Policy Letter (PPL) to provide mine operators guidance for implementing MINER Act requirements for wireless communications and electronic tracking systems.
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