|U.S. Department of Labor|
Office of the Solicitor
Division of Mine Safety and Health
What's new in the MSH Division?
The American Coal Co. v. FMSHRC, D.C. Cir. No. 14-1206. On July 31, 2015, the United States Court of Appeals for the District of Columbia Circuit issued a decision addressing the question of what constitutes a “fire” within the meaning of the Mine Act. The Court upheld the Secretary’s interpretation that the term “fire” in Sections 3(k) and 103(k) of the Mine Act, 30 U.S.C. §§ 802(k) & 813(k), is not limited to combustion that involves visible flame, and instead includes smoldering combustion that has a reasonable potential of bursting into flame.
Mill Branch Coal Corp., FMSHRC Docket Nos. VA 2012-435-R etc. On July 23, 2015, the Commission issued a decision involving an underground coal mine in Virginia, holding that (1) the MSHA inspector acted properly in issuing an imminent danger withdrawal order when he observed indications of excessive pressure in the floor, roof, and ribs in several areas of the mine, (2) a violation of 30 C.F.R. § 75.380(d)(1) consisting of an impassable primary escapeway was “significant and substantial” (S&S) within the meaning of the Mine Act, (3) the operator violated 30 C.F.R. §§ 75.364(b)(1) & (2) because the weekly examiner failed to recognize and record hazardous conditions in the primary and secondary escapeways, (4) the judge failed to adequately explain his findings that the Section 75.364(b)(1) and (2) violations were S&S, and (5) the judge failed to adequately explain his findings that the Section 75.364(b)(1) and (2) violations were not “unwarrantable failures” within the meaning of the Mine Act. The Commission remanded the matter to the judge for further analysis.
Prairie State Generating Co. LLC v. Secretary of Labor, D.C. Cir. No. 13-1315. On June 26, 2015, the United States Court of Appeals for the District of Columbia Circuit issued an opinion agreeing with Mach Mining, LLC v. Secretary of Labor, 728 F.3d 643 (7th Cir. 2013), that the Commission and its judges must review an MSHA District Manager’s plan-suitability determinations under the “arbitrary and capricious” standard of review. The Court reasoned that mine plans are analogous to generally-applicable mine safety and health standards, with the good-faith negotiation process being “akin to that of notice and comment” in rulemaking, and further recognized “the Secretary’s paramount control over and responsibility for mine-specific plans.”
Black Beauty Coal Co., FMSHRC Nos. LAKE 2008-378-R etc. On April 7, 2015, the Commission issued a decision on two procedural issues. As to the first issue, MSHA had cited the operator for altering an accident site, in violation of 30 C.F.R. § 50.12, after a rock fell from the roof and hit a miner in the head and torso, injuring him. At the hearing, the judge granted the Secretary’s motion for summary decision that there had been a violation of Section 50.12 when the operator altered the accident site without permission from the MSHA District Manager. The Commission vacated the summary decision, holding that the judge erred as a matter of law in ruling that an accident had occurred solely on the basis that the operator had called MSHA and reported that an accident had occurred. The Commission held that the judge instead should have determined whether or not an accident had in fact actually occurred before affirming the violation, and remanded the case for the judge to reopen the record and allow the parties to put on evidence in order to resolve that contested factual issue. As to the second issue, the judge granted the operator’s motion to dismiss an order charging a violation of 30 C.F.R. § 75.362(b) consisting of failure to perform an on-shift examination of a belt, finding that the Secretary failed to demonstrate that such an examination was required given the non-production status of the mine at the time the order was issued. The Commission affirmed the judge, holding that the Secretary failed to preserve for appeal the argument that the previous production shift overlapped with the midnight maintenance shift, thereby necessitating an on-shift examination.
Jim Walter Resources, Inc., FMSHRC No. SE 2007-203-R. On March 31, 2015, the Commission issued a decision involving 30 C.F.R. § 75.202(a), a standard that requires that the roof in underground coal mines be supported or controlled to protect persons from roof falls. The case arose when a large piece of roof rock fell and killed a miner. The Commission agreed that Section 75.202(a) was violated, stating that the Mine Act is a strict liability statute and that the fact that the roof fall occurred established that the roof was not adequately supported to protect the miner from roof falls.
Newmont USA Limited, FMSHRC Nos. WEST 2010-652-RM etc. On March 31, 2015, the Commission issued a decision involving a gold mine in Nevada, holding that (1) the judge was correct in finding that the operator committed a violation of 30 C.F.R. § 57.3528 consisting of failure to barricade and post no-entry signs at a heading face that was “unventilated” within the meaning of the standard, (2) the judge erred in finding that the violation was “significant and substantial” (S&S) within the meaning of the Mine Act, (3) the judge erred in finding that the violation was not an “unwarrantable failure” within the meaning of the Mine Act, and (4) the judge erred in reducing the proposed penalty of $35,500 to $5,000. The Commission vacated the S&S designation and remanded the unwarrantable failure and penalty issues to the judge for further analysis.
Shamokin Filler Company, Inc. v. FMSHRC, 772 F.3d 330 (3d Cir. 2014), cert. denied, 135 S. Ct. 1549 (2015). On March 23, 2015, the United States Supreme Court denied the operator’s petition for certiorari to review the decision of the United States Court of Appeals for the Third Circuit. The issue in the case was whether MSHA properly asserted jurisdiction over a facility that produces carbon-based products -- an issue that depended on whether the facility performs “the work of preparing the coal” within the meaning of Section 3(i) of the Mine Act, 30 U.S.C. § 802(i). The facility argued that (1) the facility does not perform “the work of preparing the coal” because the facility produces its coal-based products from coal that has already been partially processed elsewhere -- i.e., that “the work of preparing the coal” means “the work of exclusively preparing the coal” and excludes further processing of coal that has already been partially processed elsewhere, and (2) the judge erred in excluding evidence that would purportedly show that MSHA acted inconsistently in asserting jurisdiction over this facility because it declined to assert jurisdiction over other facilities that produce carbon-based products. The Third Circuit rejected the first argument in essence on the ground that the proposed limitation of “the work of preparing the coal” to the work of preparing raw coal is not supported by the statutory language. The Third Circuit rejected the second argument on the ground that the facility to which this facility primarily compared itself was not similar to this facility, MSHA had consistently asserted jurisdiction over this facility for 32 years, and introduction of the evidence could have opened up a stream of requests for comparisons to facilities all around the country, causing an unnecessary delay in the proceeding to address collateral matters.
Signal Peak Energy, LLC, FMSHRC No. WEST 2010-1130. On March 4, 2015, the Commission issued a decision in this case that arose when a roof fall in an underground coal mine produced a blast of air that propelled a miner 50 to 80 feet and produced a head cut, broken ribs, chest and back pain, trouble breathing, and signs of shock. The Commission found that the operator violated 30 C.F.R. § 50.10(b) by failing to promptly report the accident to MSHA because the miner’s injuries had a reasonable potential to cause death within the meaning of Section 50.10(b). The Commission found that the violation was significant and substantial and involved reckless disregard, and increased the penalty from the $49,500 proposed by the Secretary to $60,000. The Commission also found that the operator violated 30 C.F.R. § 50.12 by failing to preserve the accident site and that the violation involved reckless disregard, and increased the penalty from the $1,900 proposed by the Secretary to $9,500.
Solar Sources, Inc., FMSHRC Nos. LAKE 2010-774 etc. On February 12, 2015, the Commission issued a decision involving wheeled water pumps at a surface coal mine in Indiana, holding that the wheeled water pumps constituted mobile equipment within the meaning of 30 C.F.R. § 77.1109(c)(3), and hence were required to be equipped with portable fire extinguishers.
Big Ridge, Inc., FMSHRC Nos. LAKE 2008-436 etc. On February 6, 2015, the Commission issued a decision involving a safeguard notice at an underground coal mine in Illinois, holding that the safeguard notice was valid because it identified with specificity the nature of the hazard at which it was directed. The Commission remanded the case to the judge to determine whether the safeguard notice was violated.
Power Fuels, LLC v. FMSHRC, 777 F.3d 214 (4th Cir. 2015). On January 27, 2015, the United States Court of Appeals for the Fourth Circuit held that MSHA properly asserted jurisdiction over Power Fuels’ coal-blending facility in Virginia. The decision held that the phrase “as is usually done by the operator of the coal mine” in Section 3(i) of the Mine Act, 30 U.S.C. § 802(i), refers to the particular mine in question, not to a paradigmatic mine operator, and reaffirmed the functional analysis applied in previous cases. On March 27, 2015, the Court denied the operator’s petition for rehearing.
Sierra Rock Products, Inc., FMSHRC No. WEST 2010-1390-RM. On January 13, 2015, the Commission issued a decision involving a rock quarry in California. The judge had found that the operator’s violation of 30 C.F.R. § 56.12017, which consisted of failure to lock out a breaker before beginning work on an electrical system, was not an unwarrantable failure, involved moderate negligence rather than reckless disregard, and called for a penalty of $6,000 rather than a penalty of $52,600. The Commission remanded the case to the judge for further analysis.
Hidden Splendor Resources, Inc., FMSHRC Nos. WEST 2009-208 etc. On December 23, 2014, the Commission issued a decision involving three penalty assessments. The Commission (1) rejected the Secretary’s argument that the judge erred in reducing a penalty on the basis of mitigating circumstances even though the judge found that the violation involved high negligence and constituted an unwarrantable failure, (2) agreed with the Secretary’s argument that the judge erred in assessing less than the statutory minimum of $4,000 in connection with an order issued under Section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), and (3) agreed with the Secretary’s argument that the judge erred in reducing a proposed penalty by 23% without providing an adequate explanation for the reduction. The Commission affirmed the first assessment, revised the second assessment to $4,000, and remanded the third assessment to the judge for further explanation.
DQ Fire & Explosion Consultants, Inc., FMSHRC No. WEVA 2011-602. On December 19, 2014, the Commission issued a decision pertaining to the accident investigation of the Upper Big Branch Mine – South (UBB) explosion on April 5, 2010 -- specifically, pertaining to Dr. Chris Schemel, president of DQ Fire & Explosion Consultants, Inc., a company that contracted with Performance Coal Company to provide consulting services during the investigation. MSHA issued a citation alleging that DQ violated 30 C.F.R. § 48.5(a) by failing to give Schemel comprehensive new miner training and a Commission judge affirmed the citation. The Commission reversed the judge and vacated the citation, holding that MSHA did not give DQ adequate notice that it would apply Section 48.5(a) to Schemel.
DQ Fire & Explosion Consultants, Inc., FMSHRC Nos. 2011-952-R etc. On December 19, 2014, the Commission issued a decision pertaining to the accident investigation of the UBB explosion on April 5, 2010 -- specifically, pertaining to Dr. Chris Schemel, president of DQ Fire & Explosion Consultants, Inc. MSHA issued a citation alleging that DQ violated the Section 103(k), 30 U.S.C. § 813(k), accident order when Schemel entered an area of the mine which the order prohibited him from entering. A Commission judge affirmed the citation and found that the violation involved high negligence. The Commission affirmed the judge’s finding of high negligence, finding that the terms of the order were clear and rejecting DQ’s claim that it acted in conformity with an informal procedure for modifying the order.
Final Rule – Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines. On January 15, 2015, MSHA published in the Federal Register a final rule entitled “Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines.” 80 Fed. Reg. 2,188 (Jan. 15, 2015). The final rule requires underground coal mine operators to equip continuous mining machines, except full-face continuous mining machines, with proximity detection systems. Miners working near continuous mining machines face pinning, crushing, and striking hazards that result in accidents involving life-threatening injuries and death. This final rule strengthens protections for miners by reducing the potential for pinning, crushing, or striking accidents in underground coal mines. The final rule is effective March 16, 2015.
United States v. Drumlummon Gold Corp., and Seibert Smith. On June 17, 2015, a two-count felony indictment was unsealed in the United States District Court for the District of Montana. The federal Grand Jury charged Drumlummon Gold Corporation and its manager, Seibert Smith, with falsifying an MSHA training form to indicate that an employee had received training to operate a Bobcat, when in fact the corporation and Smith knew that no such training had been given.
United States v. Oril Dent. On April 2, 2015, Oril Dent was sentenced in United States District Court for the Southern District of Indiana. Dent, an independent MSHA-approved mine safety and health instructor, admitted to falsifying MSHA training certificates to indicate that he had provided annual refresher training to coal haulage truck drivers, knowing that he had in fact provided no such training. The judge sentenced Dent to 2 years of probation and a fine of $3,000.
United States v. John Renner. On March 13, 2015, John Renner was sentenced in United States District Court for the Northern District of West Virginia. Renner, a mine examiner at Patriot Coal’s Federal #2 Mine, had previously pled guilty to a charge of falsifying a mine examination record (indicating that he had conducted a block seal examination, knowing that he had not in fact conducted that examination). The judge sentenced Renner to 1 year of probation with the first 4 months to be served on home detention.
United States v. Shawn Glenn Stover. On December 18, 2014, Shawn Glenn Stover was sentenced in United States District Court for the Southern District of West Virginia, having earlier pled guilty to falsifying mine examination records. Stover, a former fireboss at Newtown Mining Company’s Peerless Rachel Mine in southern West Virginia, admitted that on multiple occasions in May and June 2013 he falsified mine pre-shift and on-shift examination records by signing them as a state-certified underground coal mine foreman when he knew that he was not so certified. The Court sentenced Stover to 30 days in prison followed by 7 months of home confinement and 3 years of supervised release.