Mine Safety and Health Blog

David Hugart, 53, former president of Massey Energy’s White Buck Coal Co., was charged today in a two-count criminal information with conspiracy to defraud the U.S. government.

He has agreed to plead guilty and is cooperating with the investigation. He will plead guilt to conspiring to impede the Mine Safety and Health Administration (MSHA) and conspiring to violate mine health and safety laws.

The criminal investigation of the U.S. Attorney’s office out of Charleston, W.Va., has been looking into practices of Massey Energy mines before the April 2010 mine disaster that killed 29 miners at the Upper Big Branch mine in West Virginia. Hugart was president of Massey’s smaller division, and oversaw three mines: the Grassy Creek No. 1 Mine, Hominy Creek Mine and briefly, the Pocahontas Mine.

The criminal information claims that MSHA regulations were routinely violated at the White Buck Mines and at other coal mines owned by Massey, in part because of a belief that consistently following those laws would decrease coal production.

Hugart was charged with giving advanced notice of inspections so that conditions in the mines could be concealed or covered up before inspectors could get into the mines and issue citations. The information claims he also conspired with other directors, officers and agents of the Massey corporation.

Hughart is the highest-ranking official charged to date in an ongoing federal investigation of Massey.

Three families of the 29 miners killed in the Upper Big Branch disaster claim they have not been paid the restitution called for in the Dec. 6, 2011 “non-prosecution agreement” between the government and company, and have filed a complaint in U.S. District Court to enforce it.

The three families are part of the 11 who settled wrongful death claims before the U.S. Attorney’s Office reached the non-prosecution agreement with Alpha Natural Resources, who merged with Massey Energy, the owner of the UBB mine.

The $209 million settlement, in which the government agreed not to pursue criminal charges against the company, called for Alpha “to provide restitution to each of the families of the fallen miners and two individuals affected by the UBB explosion.” (Non-Prosecution Agreement, pg. 1, para. 3).

However, before the non-prosecution agreement, some of the families had settled “wrongful death” claims, which under West Virginia law is separate from a claim of “restitution.”

Restitution and subsequent payments are defined under West Virginia Code §61-11A-4.

Under West Virginia law, the victim’s estate must consent to the restitution. The 11 families never consented to the restitution as required under state law, explained Michael Ranson, attorney for the three families who have brought the complaint against Alpha.

Eleven families settled wrongful death claims with Massey prior to the non-prosecution agreement. Actions for wrongful death claims are defined under West Virginia Code §55-7-5. Under the state’s wrongful death statute, an injured party can recover damages, and the wrongful death action is brought by, and in the name of, “the personal representative of such deceased person who has been duly appointed in this state.” In wrongful death cases a court must award damages that “… seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death.”

The complaint, filed Oct. 19, 2012, asks the U.S. District Court for the Southern District of West Virginia to enforce the restitution agreement for families of 11 miners listed in “Appendix C” of the non-prosecution agreement. The lawsuit was brought by Jeffrey Skeens as Administrator for the estate of Grover Skeens; Carolyn Davis on behalf of the estate of Charles Davis; and, Owen Davis on behalf of the estate of Cory Davis.

In explaining the reasoning behind the complaint, attorney Ranson likened it to a case of a drunk driver who agrees in court to pay $50,000 to a family hurt by his driving, “but then says the insurance company paid you $50,000 last year so I’m not paying.”

Eighteen families were treated differently than 11 families, Ranson said. “We settled cases for wrongful death, not restitution,” Ranson said. The 18 families who had not settled, and have received payments of restitution, are free to pursue wrong death claims in addition to the restitution called for under the agreement. But the 11 families have already settled their wrongful death claims, but never received the restitution. “Why should the 18 families be treated differently than then 11 families?” Ranson said. “Why did the government give advantage to the 18 over the 11?”

Page 5 of the non-prosecution agreement also states that $16,500,000 was previously paid out, or “anticipated” to be paid out, as part of the restitution, although the amount is under seal and cannot be verified. But again, Ranson stressed that any money paid by Massey was under wrongful-death claims the families had against the company – not restitution as called for in the agreement.

Other problems have cropped up because the agreement does not define who is “family.” For instance, if a miner has a sister with whom he had no contact, and a common-law wife, a court can award the wrongful death payment to the common law wife. However, in this case, if the restitution check is written to the estate, the sister gets the money, Ranson explained. In a wrongful death case, the court must approve the distribution of the money.

The lawsuit asks the court to recognize the 11 families listed in Appendix C of the Non-prosecution agreement as a “class,” and for an immediate restitution payment of $500,000 to each of the family members listed in Appendix C.

Miners Who Died in Explosion Whose Families Settled Wrongful Death Claims Before the Non-Prosecution Agreement:

Christopher L. Bell Sr.
Charles T. Davis
Cory T. Davis
Richard K. Lane
James E. Mooney
Joshua S. Napper
Grover D. Skeens
Benny R. Willingham
Rex L. Mullins
Edward D. Jones
Joel R. Price

The complaint can be read here: (JeffreySkeens_v_Alpha_FKA_Massey).

THE OCEAN COUNTY Office of Emergency Management has released a list of locations throughout the county that are accepting donations in the wake of Hurricane Sandy.

“We ask that residents please do not attempt to drop off donations of food, clothing or other items directly to the shelters, but instead visit one of these collection points,” said Sheriff William L. Polhemus.

Many of the centers are collecting food, clothing, toiletries and other items, although several locations have made special requests for needed items.

Locations include:

· Stafford Township Town Hall – 260 Bay Avenue, Manahawkin, NJ 08050. Requesting paper products and protein bars.
·
Little Egg Harbor Township Senior Center, 965 Radio Rd, Little Egg Harbor, NJ 08087

· St. Mary’s of the Pines Church, 100 Bishop Lane, Manahawkin, NJ 08050.

· Ocean County Hunger Relief, 21 Germania Station Road, Toms River, N.J. 08753

· Food Bank of Ocean and Monmouth Counties, 3300 Route 66, Neptune, NJ 07753

· Lacey United Methodist Church, 203 Lacey Road, Forked River, NJ 08731

· Jackson Crossings, 21 South Hope Chapel Road,
Jackson, NJ 08527

· Calvary Lighthouse Church, 1133 County Line Road, Bldg. A, Lakewood, NJ 08701

Non-perishable food & clothing.

· Church of Grace & Peace, 1563 Old Freehold Road, Toms River, NJ 08753. Non-perishable food & clothing.

· Visitation Church, 755 Mantoloking Road, Brick, NJ 08723. No clothing please. Requesting food, toiletries, pillows and blankets.

· South Toms River Borough Hall, 144 Mill Street.

Added Monday:
ENTERPRISE VOL. FIRE CO, 569 KLOCKNER RD., TRENTON, NJ
Long Branch Middle School, 350 Indiana Ave, Long Branch NJ 07740

Emergency Management officials ask that anyone who wishes to volunteer during the storm recovery to please contact the American Red Cross at redcross.org or 732-493-9100.

For Staten Island: New York Container Terminal, Sandy Relief Warehouse, 300 Western Ave., Staten Isld., NY 10303.

Settlement rejections from Commission ALJs is nothing new. However, it gets a little tiresome after awhile, not to say a huge waste of government resources, when the significant lowering of a penalty or finding has no explanation attached. As a reporter, and someone who has to “digest” the legal decisions, its a frustrating process.

So, for all of you attorneys out there, or interested parties, here are some summaries so you can get a clear picture of what’s required when you file a settlement motion with a Commission ALJ. And, by the way, step one is to go through all of the civil penalty criteria if you don’t want your settlment rejected.

CONSOL PENNSYLVANIA COAL CO., 7/12/10, Docket No. PENN 2009-803, 17 MSHN 342 (July 14, 2010) (unpublished) (ALJ Moran).
A settlement was rejected by an ALJ where a penalty assessed for $11,306 for a ventilation violation was reduced to $207. The ALJ said given the significant history of the ventilation problems at the mine and previous citations, a reduction of 98% could not be justified or accepted.

ALASKA MECHANICAL INC., 6/30/2010, 32 FMSHRC 738 (Chief ALJ Lesnick).
A settlement where an operator’s penalty was reduced by 64% was rejected because it lacked the factual basis necessary under the Mine Act. The Solicitor’s Office said the penalty was “fair” and “reasonable” and “in the public interest.” However, “the Mine Act and Commission precedent requires her and other parties to a settlement to provide more than mere empty words to justify their agreement. Otherwise, section 110(k) would be meaningless, and the authority of Commission judges to review settlements would be reduced to providing the proverbial rubber stamp.”

PC SAND & GRAVEL, Docket No. YORK 2008-104-M, 32 FMSHRC 235, (Chief ALJ Lesnick).
A settlement was approved where the Solicitor’s Office offered additional information on the withdrawal of 13 citations. The ALJ had initially rejected the settlement until the Secretary gave “legitimate reasons for vacating the citations, saying the record had been incomplete and did not provide adequate reasons upon which to base a settlement approval.

BLACK HAWK MINING, Docket Nos. WEVA 2006-22 etc., 28 FMSHRC 82 (Feb. 28, 2006), 13 MSHN 142 (March 6, 2006) (Chief ALJ Lesnick).
An operator and MSHA were ordered to submit additional information supporting a 74% reduction in penalties in a proposed settlement agreement. Judges must make sure that settlements are “consistent with Mine Act objectives,” and “the parties provided no evidence to suggest that the 74% reduction in assessed penalty supports the public’s interest.” The settlement proposed reducing the total penalty assessment for 11 violations – including one violation issued as a result of a serious injury – from $62,825 to $16,078. The motion stated that the reduction was based in part on the fact that the operator had filed for Chapter 11 bankruptcy and stopped doing business when its mine properties were sold. “At a minimum, the parties must provide evidence to support the assertion that the settlement penalty is justified under each of the six [penalty] criteria.”

MARC BOWERS, employed by PATERSON MATERIALS CORP., Docket No. YORK 99-11, 21 FMSHRC 409 (March 1, 1999), 6 MSHN 148 (March 19, 1999) (Chief ALJ Merlin)
A settlement motion proposing to reduce MSHA’s proposed fine for a mine manager’s violation of §56.6604 from $1,500 to $750 in a Sec. 110(c) case was denied. The settlement motion did not mention the six penalty criteria, and the mine manager promised to read materials, such as the pertinent standards and training manual, “that he should have already read.”

OHIO VALLEY COAL CO., Docket No. LAKE 98-237 (unpublished), 6 MSHN 60 (Jan. 22, 1999) (Chief ALJ Merlin).
A settlement agreement proposing to reduce MSHA’s civil penalty for a violation of §75.400 from $557 to $350 was denied, because the motion provided no explanation to support its recommendation.

ROHL LIMESTONE INC., Docket No. LAKE 95-323-M, 17 FMSHRC 2162 (Nov. 30, 1995) (Chief ALJ Merlin)
A settlement motion proposing to reduce MSHA’s proposed $1,000 penalty for a violation of § 56.9314 to $300 was disapproved. The operator was cited because a road base stockpile was not trimmed, resulting in an injury. In the motion, the Solicitor said the company’s negligence remained unchanged, but the operator did everything possible to avoid the hazard from causing injury. These representations are inadequate because no details of the alleged mitigating circumstances were provided. A 70% reduction in the penalty cannot be approved where the degree of negligence remains unchanged, especially where the violation caused an injury. The fact that the company is small and has no prior history of violations cannot alone justify the large penalty reduction.

BENNIE WAYNE CURTIS, employed by CANYON COUNTRY ENTERPRISES, Docket No. WEST 95-385-M, 17 FMSHRC 1810 (Oct. 23, 1995), 2 MSHN 609 (Nov. 3, 1995) (Chief ALJ Merlin)
A settlement agreement proposing to reduce penalties for two violations in a Sec. 110(c) case from $700 to $100 was rejected. The Solicitor’s Office offered “no basis” for the large penalty reductions and stated only that the number of workers exposed to the violations was very low. This statement contradicted the inspector’s findings. Also, a $50 penalty “is normally reserved for non-serious violations,” and the narrative findings attached to the penalty petitions stated that the violations of guarding standard, § 56.14107(a), and housekeeping standard, § 56.20003(a), were “serious.”

CEDAR CREEK QUARRIES INC., Docket No. WEST 94-637-M, 17 FMSHRC 830 (May 9, 1995), 2 MSHN 398 (July 14, 1995) (ALJ Hodgdon)
A settlement was rejected in which the Solicitor said he would withdraw a proposed $2,000 penalty for the operator’s violation of Sec. 103(a) of the Mine Act for interfering with an MSHA investigation. MSHA had charged that the operator’s president refused to be interviewed by an MSHA special investigator, refused to allow his foreman to be interviewed, and refused to provide the names of miners present when an earlier citation was issued. The settlement motion stated that the company president has cooperated with subsequent MSHA inspections. However, it was found that the facts in the parties’ motion were insufficient to support eliminating the penalty. Also, Sec. 110(a) of the Mine Act requires some civil penalty assessment for a violation.

KIEWIT MINING GROUP INC., Docket No. WEST 95-214-M, (not published), 2 MSHN 349 (June 16, 1995) (Chief ALJ Merlin).
A settlement agreement reducing MSHA’s proposed penalties totaling $15,000 for two violations to $6,000 was rejected. The settlement motion was found to be “woefully inadequate” and “particularly egregious” because the violations were related to a fatality. The Solicitor’s settlement motion sought a 60% reduction in the proposed penalties and failed to contain any analysis of the facts. The motion merely stated that preparation for the hearing revealed that the operator’s negligence was less than the original “moderate” charge. If the Solicitor thinks the company’s negligence is less than “moderate” for fatality violations, it must explain the circumstances leading to its conclusion. The Solicitor’s penalty proposal also failed to include a copy of the narrative findings” that the agency prepares for special assessment cases.

JERICOL MINING INC., Docket No. KENT 94-957, 17 FMSHRC 833 (May 16, 1995), 2 MSHN 319 (June 2, 1995) (Chief ALJ Merlin)
A settlement agreement reducing MSHA’s proposed penalties totaling $5,700 for a violation of § 75.342(a)(4) and a violation of § 75.202(a) to $2,298 was rejected for the second time. The parties stated they would present substantial evidence at the hearing to support their differing positions as to the level of negligence and the gravity of the violations, and said the settlement was a “compromise.” Under the proposed settlement, the S&S and high negligence findings would remain, but the proposed penalties would be greatly reduced. It was found that the parties “want it both ways” and failed to understand that the findings in the citation are the same as the penalty criteria in Sec. 110(i) of the Mine Act the commission and its judges are required to observe. The proposed settlement is “too low for the level of the charges made and provides no basis to reduce the original assessment.”

AMAX COAL CO., Docket No. LAKE 95-124, 17 FMSHRC 682 (April 13, 1995), 2 MSHN 239 (April 21, 1995) (Chief ALJ Merlin).
A settlement agreement reducing MSHA’s proposed $1,500 penalty for a violation of “new task” training regulation, §48.7(a), to $800 was rejected. The Solicitor must do more than say that the parties dispute the degree of gravity when it seeks to cut the original penalty almost in half.

HARBOR ROCK INC., Docket No. WEST 95-64-M, 17 FMSHRC 492 (March 16, 1995), 2 MSHN 174 (March 24, 1995) (ALJ Melick)
— A settlement agreement reducing MSHA’s proposed $1,000 penalty for a violation of Sec. 103(a) of the Mine Act to $320 was rejected in a case charging that the operator’s president and vice president threatened the inspector and ordered him off mine property. A settlement reducing MSHA’s proposed $2,000 penalty for a violation of travelways rule, §56.11012, to $639 also was also rejected. The parties “offered absolutely no explanation for the large reductions in the penalties, and the violations are egregious and serious.”

JERICOL MINING INC., Docket No. KENT 95-31, 17 FMSHRC 489 (March 16, 1995), 2 MSHN 175 (March 24, 1995) (Chief ALJ Merlin)
A settlement agreement reducing MSHA’s proposed penalties for two violations of roof support rules was disapproved because the motion “merely stated the operator’s position with respect to the violations” and the Solicitor did not indicate whether it agreed with the company’s assertions. The parties were ordered to explain the proposed penalty reductions in light of the six penalty criteria set forth in Sec. 110(i) of the Mine Act. The parties had sought a reduction in the proposed $431 penalty for a violation of §75.202(a) to $50, and also had sought a reduction in the proposed $595 penalty for a violation of §75.203(a) to $395.

JERICOL MINING INC., Docket No. KENT 95-32, 17 FMSHRC 486 (March 16, 1995), 2 MSHN 175 (March 24, 1995)(Chief ALJ Merlin)
A settlement agreement reducing MSHA’s proposed $1,779 penalty for a violation of the methane monitor standard, § 75.342(b)(2), to $50 was rejected. The settlement motion merely stated the company’s position with respect to the violation and did not state whether MSHA agreed with the company’s claims. A settlement must be justified under the six penalty criteria listed in Sec. 110(i) of the Mine Act.

JERICOL MINING INC., Docket No. KENT 94-957, 17 FMSHRC 244 (Feb. 7, 1995), 2 MSHN 125 (Feb. 24, 1995)(Chief ALJ Merlin)
A settlement agreement was rejected where penalties were lowered from $3,000 to $2,000 for two violations, but the citations remained as written. In one case, the methane monitor on a continuous miner would not deenergize the control circuit because the monitor module was disconnected from the control circuit. The inspector had also detected methane at seals deeper in the mine from where the miner was cutting coal. According to the joint motion filed by the Solicitor’s Office and company, the operator’s witnesses would challenge the inspector’s assessment of the presence of methane. In the second violation, there were loose ribs along the haulage roadway. According to the parties, the operator would present evidence that the ribs were more stable because they could not be pulled down single-handedly but required the use of a four foot bar used to pry down slate. The joint settlement motion merely set forth unresolved conflicts between the parties on the evidence and failed to justify the reduction in penalties based on the six penalty criteria listed in Sec. 110(i) of the Mine Act.

CHANDLER’S PALOS VERDES SAND & GRAVEL CO., Docket No. WEST 94-478-M, 16 FMSHRC 1926 (Aug. 29, 1994), 1 MSHN 466 (Sept. 9, 1994) (Chief ALJ Merlin).
A settlement agreement reducing MSHA’s proposed penalties totaling $7,000 for two violations of §56.16002 to $5,250 was rejected. The two violations in this case contributed to an accident which caused an injury to a miner where a work platform was not provided for the top of the two washed concrete sand storage silos, and a plant repairman entered a washed concrete sand bunker without wearing a safety belt and lifeline. The Solicitor gave no reason to support the proposed reductions in the penalties. The Solicitor must provide a basis to approve such a settlement, especially because an injury occurred. The fact that the suggested penalties remain substantial does not in and of itself, warrant approval.

COLUMBIA QUARRY CO., Docket No. LAKE 94-155-M, 16 FMSHRC 1924 (Aug. 29, 1994), 1 MSHN 466 (Sept. 9, 1994) (Chief ALJ Merlin)
A settlement agreement reducing MSHA’s proposed $400 penalty for a violation of reporting regulation §50.10 to $250 was disapproved because the Solicitor failed to refer to the six penalty criteria set forth in Sec. 110(i) of the Mine Act. The operator was initially charged with “high” negligence. The Solicitor’s settlement motion stated that the company’s negligence remained the same and proposed the reduction because the parties did not want to pursue further litigation. This is insufficient to support a penalty reduction.

KIEWIT WESTERN CO., Docket No. WEST 94-213-M, 16 FMSHRC 1401 (June 15, 1994), 1 MSHN 349 (July 1, 1994) (Chief ALJ Merlin).
A settlement agreement reducing MSHA’s proposed $4,000 penalty for a violation of electrical standard, §56.12016, to $1,000 was disapproved because the agency failed to provide sufficient information to justify the reduction. MSHA’s settlement motion attributed the miner’s accident to a communication mix-up” but did not explain what the mix-up was, who was involved and why it was not attributable to the operator.

FLETCHER GRANITE CO., Docket No. YORK 93-149-M, 16 FMSHRC 1203 (May 27, 1994), 1 MSHN 327 (June 17, 1994)(Chief ALJ Merlin)
A settlement was rejected where four violations were all designated as S&S and found to be a result of unwarrantable failure on the part of the operator. In addition, the violations were specially assessed. The Solicitor gave no reasons to support the proposed reductions in the penalties. Where the violations are serious and the operator’s conduct has been characterized as unwarrantable, the Solicitor must provide a basis to support the settlements for which the Secretary seeks approval. The fact that the suggested penalties remain substantial does not in and of itself, warrant approval.

CONCRETE MATERIALS, Docket No. CENT 92-358-M, 15 FMSHRC 337 (Feb. 18, 1993) (Chief ALJ Merlin)
A proposed settlement agreement submitted by the Solicitor that reduced MSHA’s original $690 penalty proposal for a violation of §56.12067 to $50 was rejected. The citation stated the fence surrounding an electrical substation was not six feet high as required by the standard, and the inspector found that contact with the exposed energized high-voltage components might result in a fatality. In its motion for settlement approval, MSHA alleged the operator’s negligence was lower than originally assessed and the violation was not S&S. However, the agency gave no reasons to support these conclusions and instead filed the usual form motion.”

CONSOLIDATION COAL CO., WEVA 91-43, 13 FMSHRC 748 (Apr. 30, 1991) (ALJ Fauver).
Where a power cable on a pump was not properly entered into the junction box of a motor and an inspector issued a citation for a S&S violation of §75.515, the Secy.’s motion to approve a settlement agreement which would have vacated the S&S designation was denied; the proper standard for determining whether an alleged violation is S&S is if it presents a substantial possibility of injury, and the Secy.’s settlement motion did not establish that the possibility of injury did not exist.

CONSOLIDATION COAL CO., WEVA 91-43, 13 FMSHRC 748 (Apr. 30, 1991) (ALJ Fauver)
Where a trailing cable to a continuous miner was not adequately insulated and an inspector issued a citation for a S&S violation of §75.517, the Secy.’s motion to approve a settlement agreement which would have vacated the S&S designation was denied; the proper standard for determining whether an alleged violation is S&S is if it presents a substantial possibility of injury, and the Secy.’s settlement motion did not show that the possibility did not exist.

EL PASO SAND PRODUCTS, INC., CENT 88-53-M, 88-65-M, 88-79-M, 88-83-M, 88-104-M, 88-141-M, 11 FMSHRC 265 (Feb. 9, 1989) (ALJ Koutras).
Three settlements were rejected where supported by “boilerplate language” regarding negligence and probability of harm that was contrary to pleadings and narrative findings of original citations and imminent danger orders, where a miner was injured in a conveyor belt accident, and unsafe highwalls were found. The settlement motion contained unexplained assertions by the parties that there “was little or no negligence,” and are totally without foundation. The inspectors found that the violations were the result of a high degree of negligence, and in one case, the inspector made a negligence finding of reckless disregard. If the parties believe that these defenses have merit, or should be considered by the judge in mitigation of the civil penalties, it is incumbent on the parties to place these arguments clearly and succinctly before the judge for consideration. Reliance on boilerplate contradictory language that bears no rational or reasonable relationship to the particular facts of a case is unacceptable.

COLUMBIA PORTLAND CEMENT CO., LAKE 88-54-M, 10 FMSHRC 1363 (Sept. 7, 1988) (ALJ Merlin)
Proposed settlements for 19 citations were rejected where the same language was used in each without facts or rationale to support the recommendation for each violation. Some violations could have resulted in permanent disability, lost workdays or restricted duty. The ALJ said he had “particular difficulty” in approving a penalty reduction when the projected injury is permanent disability, lost workdays or restricted duty.

For the second time in one week, a Review Commission judge has rejected a settlement motion submitted by the Solicitor’s Office due to lack of specificity.
Rejection of settlement motions has been an on-going problem for years, but more judges are calling the Solicitor’s to task for motions lacking factual information.
The latest case is before ALJ Priscilla Rae and involves a citation issued to Dominion Coal Corp.’s Mine No. 44. The settlement motion filed by the Solicitor’s Office would modify the citation so that the language reflects that an injury would be “permanently disabling,” and reduce the penalty from $1,111 to $777.
In rejecting the motion, ALJ Rae said the motion “fails to predicate the modifications upon any factual support. … The Arlington Solicitor’s Office has been on notice of the Commission’s clear instructions to provide a factual basis for each and every settlement. … The Secretary may not continue to act in blatant disregard of the Mine Act, Commission rules unless an appeals court overturns the well-established principles set forth in the Commission’s Black Beauty decision.”
Rae said that the Solicitor’s Office filed documents on Oct. 3, and “immediately thereafter the solicitor was sent an email informing him that a revised Motion and Order were needed including a factual basis for the modifications. No revision has been received. The Secretary is acting in a direct contravention of my Order as well as recently issued Commission decisions and obstructing the judge’s authority and responsibility to enforce the intent and purpose of the Mine Act.
In a footnote, Judge Raw added that “It is clear from this course of conduct that the solicitors involved in these matters have no intention following the rulings of the Commission, [or] the orders of its Administrative Law Judges.”
The attorneys listed on the case are Assistant Regional Solicitor Douglas White, and Solicitor Pollyanna Hampton.
On Oct. 15, Mine Safety and Health News reported that Review Commission Judge Thomas McCarthy issued a stern warning to the Solicitor’s Office, and threatened disciplinary proceedings where DOL attorney Robert Wilson did not provide any facts to support overturning an MSHA inspector’s S&S finding, and a reduction in the penalty for a violation of a Emergency Response Plan at Dickenson-Russell Coal Co’s Cherokee Mine.

Alpha Natural Resources’ Road Fork Mine is contesting over $250,000 in penalties assessed for citations and orders stemming from a May 18 belt fire at the Pineville, W.Va. mine.

The mine was hit with 11 – 104(d)(2) orders after MSHA found that CO detectors were not calibrated, belt slippage detectors not installed properly, and fire suppression systems with battery back-up systems inoperable.

With some orders eerily reminiscent of the Aracoma Mine fire that killed Ellery Hatfield and Donald Bragg in January 2006, MSHA also claims that in this case mine management did not follow proper emergency procedures and evacuate miners when an imminent danger existed. The superintendent of the Road Fork Mine, Lawrence Lester, was also the superintendent of the Alma No. 1 Mine when that fatal fire occurred in 2006, and the two miners died from smoke inhalation.

At the time of the May 18, 2012 incident, Alpha spokesperson Ted Pile said it wasn’t serious and the company handled the situation properly.

It was by chance that MSHA discovered the situation, when inspector Joey Wolford arrived in the morning for a regular inspection and found “ a lot of unusual activity in the offices. There were several miners in the hallway and he overheard a conversation about smoke underground,” and there was smoke in the belt entry and in the secondary escapeway, according to MSHA’s report.

Wolford asked if miners were being evacuated, and the General Mine Foreman, Selby Cook, said they were not withdrawing the miners at that time, but trying to determine the source of the smoke.

Minutes later, miners reported that the smoke was increasing, and Cook informed those miners to don SCSRs and leave by the primary escapeway. Since other miners were still located inby at the time, Wolford issued a verbal 107(a) imminent danger order to evacuate every miner not necessary to locate the source of the smoke.

During this time, mine foreman, Lacy Lusk, who was searching for the cause of the smoke, found that a belt at the 2D belt drive was severed due to wear and friction, and applied 3 bags of rock dust to the area. He remained in the area for about 30 minutes until he was told to evacuate.

Belt Sensors and CO Detectors Not Working

During the investigation, MSHA first found that a sensor installed for slip protection on the rollers was not connected for use. The cable from a senor was coiled up and hung near the control box.

While the mine had CO detectors, the detectors never alerted the surface to a problem. The smoke in the mine passed by five CO detectors that never went off, according to MSHA.

It turns out that some of the CO sensors had the same “location address,” causing the data to become corrupted, and the surface not being alerted to a problem. Once the sensor addresses were changed so each sensor had a separate identifying number or address, the alarm worked on the surface.

However, the mine’s log book showed that all of the CO monitors underground were properly calibrated on March 7, 2012, April 5, 2012 and May 12, 2012, for a total of 138 calibrations. However, when MSHA accessed the CO monitor’s computer-generate records from each calibration, there were only a total of 26 calibrations on the dates reported by company officials, and no calibrations performed on May 12 – six days before the incident. “This leaves 112 instances where the calibrations of these CO monitors were not performed properly on the dates indicated on the company’s records,” MSHA said.

Tracking System Backup Not Working

MSHA also found that when underground power was disconnected, the battery back-up units for the tracking system failed to operate. The tracking system is required to operate for 24 hours on battery back-up during a mine power-outage.

MSHA said it also found that the #2 working section was without any tracking capability for three days from May 16 – May 20.

Another problem was found with the Ansul dry chemical type fire suppression system installed to protect the 2D starter box. The battery on this was found discharged and inoperable. The company has already paid a $362 fine for this violation. A second problem found with the starter box involved an electrical violation where the 2D starter box should have an overload “trip” setting at 212 amps, and MSHA found the overload set to deenergize at 400 amps. The company paid a penalty of $946 for this violation.

Orders and Citations:
Citation #/ CFR # / Description/ Proposed MSHA Fine
#8151980 / 104(d)(2) order §75.1502 / §75.1502 / Failing to follow the approved mine emergency evacuation plan for not evacuating when thick smoke was reported. / $60,000

#8148366 / 104(d)(2) order §75.1102/ Failing to equip the 2D belt drive with an operable slippage sensor. /$17,301

#8148365 / 104(d)(2) order §75.1100-3 / Failing to have an operable carbon monoxide sensor installed within 100 feet of the 2D belt drive. /$20,302

#8148369/ 104(d)(2) order/§75.900/ Setting the overloads providing protection for the drive motor at 400 amps when it should have been set at 212 amps. / $946 (paid)

#8148368/ 104(a) citation §75.1100-3/ Failing to provide fire protection for the belt controls./$5,503

#8151981/ 104(a) citation §75.400 / Allowing combustible materials to accumulate on and around the 2D belt drive and take-up unit. /$18,271

#8148367/ 104(d)(2) order §75.512 / Failing to conduct an adequate examination of the 2D belt drive. /$27,959

#8151982 / 104(d)(2) order §75.400 /Allowing accumulations of combustible material along the 2C belt line. $60,000

#8151984/ 104(d)(2) order §75.362(b)/ Failing to conduct an adequate examination of the 2C belt line. /$20,302

#8151983/ 104(a) citation §75.1100-3 / Failing to maintain the fire suppression system protecting the 2B take-up power pack. / $362 (paid)

#8148364 / 104(d)(2) order §75.1103-8(a) / Failing to conduct a weekly examination of the fire detection system installed to protect the conveyor belts. / $17,301

#8151985 /104(d)(2) order §75.363(a) / Failing to correct hazardous conditions found and reported in the weekly airways examination book / $4,000

#7276701 /104(d)(2) order §75.1103-8(c) /Failure to calibrate CO monitors at least every 31 days. /Not assessed yet

#7276702/ 104(d)(2) order Mine Act 316(b) / Failing to follow the approved ERP, providing required tracking, and 24 hours of battery back-up / Not assessed yet

.

MSHA and Murray Energy subsidiary Genwal Resources announced a $949,351 settlement of violations that led to the 2007 Crandall Canyon Mine Disaster in Utah, that killed six miners and three rescuers in two separate collapses.

The settlement, not yet been approved by Review Commission Judge Richard Manning, represents a 42% overall reduction in the overall penalties that had been levied against the company after the fatal bounces. MSHA initially sought $1,636,664 in proposed penalties against the company.

The original penalties for nine contributory violations listed in MSHA’s final report on the disaster totaled $1,340,000 and were settled for $874,000 with two of the contributory violations vacated.

The settlement before ALJ Manning shows a total settlement of $1,150,000, contained in 20 dockets before the Review Commission.

Solicitor of Labor M. Patricia Smith stated in a press release, “In this settlement, Genwal Resources and Andalex Resources have acknowledged responsibility for the failures that led to the tragedy at Crandall Canyon,” said. “These failures resulted in the needless deaths of nine members of the mining community.”

Genwal stated in a company press release that it “would have presented evidence that the alleged violations did not contribute to the cause or effect of the 2007 accidents.”

The settlement agreement submitted to ALJ Manning states that “Neither this settlement agreement nor the mine operators’ consent to entry of a final order by the Review Commission pursuant to this Agreement constitutes any admission by the operators of a violation of the Federal Mine Safety and Health Act or regulations or standards promulgated thereunder, except for purposes of proceedings under the Mine Act. The stipulations, findings and action taken herein are made for the purpose of settling this matter amicably, and they should not be used for any purpose, except proceedings and matters arising under the Mine Act.”

The settlement also includes $200,649 to settle other citations and orders at other Murray subsidiary mines in Utah: West Ridge Mine, Aberdeen Mine and the Lila Canyon Mine, and there are no modifications to those citations or orders. According to the Genwal press release, these were “other administrative actions that are unrelated to the Crandall Canyon civil penalties.” However, “orders” in terms of Mine Act violations are generally not administrative violations.

In a short interview with Mine Safety and Health News, MSHA-head Joe Main said that the company agreed tot he settlement with four of the violations still listed “contributory” and “this is part of the acknowledgment of the companies in terms of the settlement.”

“If you look at where we are at I believe the violations contained in that settlement supported MSHA’s investigation findings, and the operator allowed the conditions at Crandall Canyon to deteriorate and ignored the warning signs that led to the tragedy. That’s the front end of what this settlement recognizes.”

Below is a list of MSHA’s original contributory violations, and the settlement amounts and changes. A complete story of the settlement and citations will be in Mine Safety and Health News, Vol. 19, No. 19.

Citation # 7697007
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 75.203 (a)
Gravity: S&S, Fatal, Occurred
Negligence: High
Proposed Penalty: $60,000
Settlement: $60,000 – no change
Condition or Practice: During pillar development and recovery in the Main West Barrier
sections, pillar dimensions were not compatible with effective control of coal or rock bursts.
Pillar stability analysis confirms that the length and width of pillars within the active workings,
as well as dimensions of the adjoining barrier pillars, did not provide sufficient strength to
withstand stresses during pillar recovery. This also constitutes a violation of 75.202(a).
On August 6, 2007, a sudden and violent failure of the overstressed coal pillars and barrier
occurred in the Main West South Barrier working section. This instantaneous release of energy
caused the coal ribs to burst, fatally injuring the six man production crew. A second failure of a
coal pillar occurred on August 16, 2007, fatally injuring three rescuers and injuring six other
rescuers. This constituted an unwarrantable failure to comply with a mandatory standard.

Citation # 7697008
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 75.203 (a)
Gravity: S&S, Fatal, Occurred
Negligence: High
Proposed Penalty: $60,000
Settlement: $60,000 – changed from contributory to non-contributory
Condition or Practice: During pillar recovery of the Main West South Barrier section from July
15, 2007, until August 6, 2007, the mining of bottom coal exposed persons to hazards caused by
faulty pillar recovery methods. GRI mined up to five feet of additional bottom coal from the
barrier and the pillars. This resulted in pillars with heights up to 13 feet, as opposed to the
original 8-foot high pillars. This compromised the stability of the pillars. These pillar
dimensions were not compatible with effective control of coal or rock bursts.
On August 6, 2007, a sudden and violent failure of the overstressed coal pillars occurred,
instantaneously releasing large amounts of accumulated energy that exposed miners on the Main
West South Barrier section to hazards related to the coal burst. This constitutes an unwarrantable
failure to comply with a mandatory standard.

Citation # 7697004
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 75.223 (a)
Gravity: S&S, Fatal, Occurred
Negligence: High
Proposed Penalty: $60,000
Settlement: Vacated – evidence did not meet strict requirements necessary to establish violations
Condition or Practice: Revisions of the roof control plan were not proposed by the operator
when conditions at the mine indicated that the plan was not adequate or suitable for controlling
the roof, face, ribs or coal bursts. These conditions included bounces, which occurred in the
Main West North Barrier section that resulted in roof and rib damage, and caused miners to fall
onto the mine floor and a reportable coal outburst that occurred on March 7, 2007. The
operator’s failure to make appropriate changes to its roof control plan contributed to the August 6, 2007 fatal accident. This constitutes an unwarrantable failure to comply with a mandatory
standard.

Citation # 7697005
Type of Issuance: 104 (d) (2) Order Standard Violated: 30 CFR 75.223 (a)
Gravity: S&S, Fatal, Occurred
Negligence: High
Proposed Penalty: $60,000
Settlement: $60,000 – negligence changed from “high” to “moderate.”
Condition or Practice: The operator did not propose adequate revisions to the roof control plan
when conditions at the mine indicated that the plan was not adequate or suitable for controlling
the roof, face, ribs or coal bursts. These conditions included bounces that occurred in the Main
West North Barrier section and resulted in roof and rib damage and equipment damage, and a
coal outburst, which occurred on March 10, 2007 and caused substantial damage to the section.
The revisions to the roof control plan proposed following the March 10, 2007 coal outburst did
not make the plan adequate or suitable for controlling the roof, face, ribs or coal or rock bursts.
The operator’s failure to make appropriate changes to its roof control plan contributed to the
August 6, 2007 fatal accident. This was an unwarrantable failure to comply with a mandatory
standard.

Citation # 7697006
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 75.223 (a)
Gravity: S&S, Fatal, Occurred
Negligence: Reckless Disregard (Flagrant)
Proposed Penalty: $220,000
Settlement: $220,000 – no change
Condition or Practice: Revisions of the roof control plan were not proposed by the operator
when conditions at the mine indicated that the plan was not adequate or suitable for controlling
the roof, face, ribs or coal bursts. These conditions included bounces that occurred in the Main
West South Barrier section that resulted in roof and rib damage, and caused miners to fall onto
the mine floor and a reportable coal outburst that occurred on August 3, 2007. The operator’s
failure to make appropriate changes to its roof control plan contributed to the August 6, 2007
fatal accident. This constitutes an unwarrantable failure to comply with a mandatory standard.

Citation # 7018222
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 75.220 (a) (1)
Gravity: S&S, Fatal, Occurred
Negligence: Reckless Disregard (flagrant)
Proposed Penalty: $220,000
Settlement: $207,000 – changed to non-contributory
Condition or Practice: 30 CFR 75.220(a) (1) requires that a mine operator develop and follow a
roof control plan approved by the District Manager. The mine operator did not follow the
approved roof control plan amendment dated June 15, 2007 addressing pillar recovery mining in
the Main West South Barrier. The site specific approved plan does not permit mining in any of
the barrier to the south of the No. 1 entry between crosscut 142 and crosscut 139. The barrier
south of the No. 1 entry was mined in this restricted mining area. This mining worsened the
stability of the barrier and pillars in this area and contributed to the fatal accident on August 6.
This violation constitutes an unwarrantable failure to comply with a mandatory standard.

Citation # 7697001
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 50.10
Gravity: S&S, Fatal, Occurred
Negligence: Reckless Disregard
Proposed Penalty: $220,000
Settlement: Vacated
Condition or Practice: The operator did not immediately contact MSHA at once without delay
and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knew that an
accident in the Main West North Barrier section occurred on March 7, 2007. A coal outburst
threw coal into the mine openings, disrupting regular mining activity for more than one hour.
The accident was not reported to MSHA pursuant to this standard. Without proper notification,
MSHA had no opportunity to investigate this accident. The failure to report this accident denied
MSHA an opportunity to investigate it and learn that the mining methods provided inadequate
protections. This failure contributed to the August 6 fatal accident. This violation is an
unwarrantable failure to comply with a mandatory standard.

Citation # 7697002
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 50.10
Gravity: S&S, Fatal, Occurred
Negligence: Reckless Disregard
Proposed Penalty: $220,000
Settlement: $207,000 – changed from contributory to non-contributory
Condition or Practice: The operator did not immediately contact MSHA at once without delay
and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knew that an
accident in the Main West North Barrier section occurred on March 10, 2007. A coal outburst
threw coal into the mine openings, disrupting regular mining activity for more than one hour.
The accident was not reported to MSHA pursuant to this standard. The failure to report this
accident denied MSHA an opportunity to investigate it and learn that the mining methods
provided inadequate protections. This failure contributed to the August 6 fatal accident. This
violation is an unwarrantable failure to comply with a mandatory standard.

Citation # 7697003
Type of Issuance: 104 (d) (2) Order
Standard Violated: 30 CFR 50.10
Gravity: S&S, Fatal, Occurred
Negligence: Reckless Disregard (Flagrant)
Proposed Penalty: $220,000
Settlement: $60,000 – high negligence, but order remains as contributory
Condition or Practice: The operator did not immediately contact MSHA at once without delay
and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knew that an
accident in the Main West South Barrier section occurred on August 3, 2007. A coal outburst
threw coal into the mine openings, disrupting regular mining activity for more than one hour.
The accident was not reported to MSHA pursuant to this standard. The failure to report this
accident denied MSHA an opportunity to investigate it and learn that the mining methods
provided inadequate protections. This failure contributed to the August 6 fatal accident. This
violation is an unwarrantable failure to comply with a mandatory standard.

In an unpublished decision, the U.S. Court of Appeals for the 4th Circuit has given a small victory to the families of Donald Bragg and Ellery Hatfield, killed in the 2006 Aracoma mine fire in West Virginia.
The families filed a negligence and wrongful death action against MSHA under the Federal Tort Claims Act, arguing that MSHA was negligent in it’s safety inspections of the Aracoma Coal Co.’s Alma Mine.
The 4th Circuit ruled that a West Virginia Court must determine, or answer the question, of whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations could be liable for the wrongful death of a miner resulting from the private party’s negligent inspection. If the lower court were to find that a private party could be held accountable, then the widows’ lawsuit against MSHA under the Federal Tort Claims Act may move forward.
District Court Judge John Copenhaver Jr. dismissed the action in February 2011because, in his view, under West Virginia law, a private person under like circumstances to those alleged against MSHA would not be liable in a negligence action for the wrongful death of the miners. (18 MSHN 71; Feb. 11, 2011). Judge Copenhaver called the case “undeniably tragic,” but placed the blame for the miner’s deaths squarely on the mine operator, saying it was the mine operator that created the hazardous conditions that led to the Jan. 19, 2006 mine fire at the former Massey Energy-owned mine.
In his decision, Copenhaver noted that the widow’s might have had a case if they could establish liability for a private person under West Virginia law.
After Copenhaver’s decision, the attorney for the widows, Bruce Stanley, said, “while building contractors can collect money damages from architects for project overruns, dead miners’ families cannot collect damages for MSHA’s decision not to do its job.”
In ruling in favor of the two widows, the 4th circuit noted that MSHA’s investigation also revealed the inadequacies of its own previous inspections of the Mine.
The appeals court court wrote, “For example, by late 2005, MSHA inspectors issued 95 citations to Aracoma Coal for safety violations but failed to ‘identify and cite numerous violations that were in existence, neither did they require the mine operator to take corrective actions.’ Likewise, MSHA personnel ‘failed to follow explicit Agency policy regarding Section 103(i) inspections [i.e., spot inspections]’ by failing to ‘undertake reasonable efforts to detect mine hazards’, through a ‘gross misallocation of inspector resources,’ and by exhibiting ‘a lack of initiative to appropriately conduct Section 103(i) inspections.’
“ Accordingly, MSHA determined that its own inspectors were at fault for failing to identify or rectify many obvious safety violations that contributed to the fire. In relation to
training, MSHA concluded that its inspector ‘assigned to inspect the [Mine] did not determine whether the [atmospheric monitoring system] operator[, who ignored the CO alarms during the fire,] was adequately familiar with his duties and responsibilities, even though this determination was required of and understood by the inspector.’ The MSHA investigation also revealed
that ‘[a]n adequate inspection by MSHA [of the atmospheric monitoring system (“AMS”)] would have identified the deficiencies with the AMS, including the fact that no alarm unit had been installed.’ In relation to the ventilation controls, the MSHA investigation confirmed that its inspectors, ‘demonstrated a lack of initiative to identify basic violations . . . even though the unmarked doors and missing stoppings were obvious and easily identifiable. . . . [such that] an adequate MSHA investigation . . . would have identified the missing stoppings’ The MSHA investigation also revealed that other contributing factors to the fire including its ‘inadequate’ inspection of the conveyor belts and its ‘ineffective use of MSHA’s enforcement authority’ in issuing citations for accumulated coal dust.”
The 4th Circuit continued in the decision to outline MSHA’s failures including “conflicts of interest may have contributed to its inspectors’ inadequate and ineffective inspection and enforcement of the Mine’s compliance with mine safety regulations: The internal review team has concluded that mine inspectors neglected to issue citations in some situations in which citations were justified and that mine inspectors on occasion underestimated [Aracoma
Coal’s] negligence and/or the gravity of the hazardous conditions when violations were cited. . . . The failure to propose more significant civil penalties likely interfered with the deterrent value that civil penalties are designed to have under the Mine Act. . . . [The internal review team believes that some of the identified deficiencies may have stemmed from the relationship that MSHA developed with Massey Energy Company representatives in early 2001. . . . [U]sing
enforcement personnel in this manner to assist the Aracoma Coal Company with its compliance efforts may have created a conflict of interest that, over time, may have affected the level of scrutiny MSHA provided at [the Mine] during subsequent mine inspections.]”
The case now moves to the West Virginia Supreme Court of Appeals.
DELORICE BRAGG, as Administratrix of the Estate of; DON ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the Estate of; ELLERY HATFIELD, v. UNITED STATES OF AMERICA, CA 4 No. 11-1342 (unpublished).

MSHA announced that it’s going after 3 operators in New England for delinquent fines.

The first complaint, filed in the U.S. District Court for the District of Connecticut against American Industries Inc. in Jewett City, Conn., seeks to collect unpaid civil penalties of $24,628 assessed against the construction sand and gravel operation, plus interest.

The second complaint, filed in the U.S. District Court for the District of Massachusetts against R.J. Cincotta Co. Inc. in Waltham, Mass., seeks $144,847 in unpaid civil penalties assessed against the crushed stone operation, plus interest.

The third complaint, filed in the U.S. District Court for the District of New Hampshire against Raymond Sand and Gravel in Raymond, N.H., seeks $98,249 in unpaid civil penalties assessed against the sand and gravel operation, plus interest.

The suits were filed by the Labor Department’s Regional Office of the Solicitor in Boston.

For too long, the issue of delinquent fines has been ignored by the government. I have no sympathy in these cases.

One does not need an attorney for these cases. The Federal Mine Safety and Health Review Commission judges give a lot of leeway to operators who are representing themselves. The judges are also extremely gracious in reducing penalties when operators offer proof that they could be put out of business under the computer-generated penalties that MSHA proposes.

There is no excuse to ignore citations and ignore penalties.

The “level playing field” is that each operator has to be responsible.