MSHA HAS JURISDICTION OVER GARAGE – A MILE AWAY FROM QUARRY

Noelle Holladay True (true@rwktlaw.com)

In a recent decision under the Mine Act, an Administrative Law Judge extended jurisdiction to the Mine Safety and Health Administration (“MSHA”) over a garage used for equipment storage and repairs that is located a mile away from Brdaric Excavating Inc.’s Buck Mountain Quarry in Luzerne, Pennsylvania.  MSHA was initially denied entry by the owner, but later conducted an inspection of the garage and issued six citations.  The operator contested MSHA’s jurisdiction over the garage, but did not deny the violations.

The parties stipulated that at the time of the inspection, most of the equipment and vehicles stored at the garage were not used at the quarry, but were instead used on other non-mining-related job sites.  However, since some quarry equipment was stored and repaired at the garage, the judge held that it was a “facility used in mineral extraction and milling.”  The distance of one mile between the garage and the quarry was considered minimal and irrelevant.

The judge also held that the fact that the garage was under separate ownership from the quarry was not relevant to the issue of whether the garage qualifies as a “mine” under the Mine Act.  Finally, the company had fair notice of MSHA’s jurisdiction since the agency attempted to inspect the garage in 2008, and was told the company would no longer use the garage to repair any mining-related equipment.

Secretary v. Brdaric Excavating Inc., Case No. PENN 2012-313-M (Feb. 2016) (ALJ Lewis).

SUPREME COURT HALTS OBAMA CLEAN POWER PLAN

John M. Williams (williams@rwktlaw.com)

The United States Supreme Court has issued a stay putting on hold the Obama Administration’s Clean Power Plan promulgated by the Environmental Protection Agency. Enforcement of the rule is stayed at least until the United States Court of Appeals for the District of Columbia rules on a challenge to the rule later this year. The challenge was brought by a group of states, utilities and coal operators. If the rule is upheld, the stay would likely remain in place while review before the Supreme Court is sought.

This is not a ruling by the Court on the merits of the challenge to the rule. Rather, the Court has ordered that the rule be put on hold until the court challenges are decided. The practical effect is that the EPA will not be able to enforce the September 6 deadline given states to submit their emissions-reduction plans for approval. The stay does, however, indicate the Court may be skeptical of the government’s prospects of prevailing on the merits.

The Court’s four liberal justices–Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan–dissented from the Court’s ruling.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

MSHA IMPLEMENTS PHASE II OF DUST RULE

John M. Williams (williams@rwktlaw.com)

On February 1, 2016, Phase II of the Mine Safety and Health Administration’s respirable dust regulations took effect. Underground coal miners will now wear Continuous Personal Dust Monitors to provide real time analysis of exposure to respirable dust. The goal is to use this real time monitoring to immediately address excessive exposure to coal dust. Operators must also post the results of this sampling within 12 hours of the sampled shift. Any miner who has shown evidence of black lung disease (coal worker’s pneumoconiosis) must be given the sample results within an hour of the start of his or her next work shift.

Phase II comes on the heels of the January 25, 2016 decision by the United States Court of Appeals for the 11th Circuit upholding the new dust rule against a challenge by various trade groups and operators. National Mining Association, et al. vs. Secretary, U.S. Department of Labor, Mine Safety and Health Administration, Case No. 14-11942. Full text of this opinion made be found on the Court’s website.

The third phase of the dust rule takes effect on August 1, 2016. It lowers the dust standard from 2.0 milligrams per cubic meter of air measured over a shift to 2.0 milligrams.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

Warning for All Executives: The Feds Are Watching

Marco M. Rajkovich, Jr. (rajkovich@rwktlaw.com)

Whether you think well of former Massey Energy CEO Don Blankenship or dislike him; whether you are a “Friend of Coal” or a “War on Coal” supporter; Blankenship’s conviction should get the attention of any Executive in any industry. The federal prosecutor on the case said it was the first time a chief executive of a major corporation was convicted of a workplace crime. “Unprecedented” was the word. Blankenship was tried on charges of conspiring to break safety laws, defrauding mine regulators and lying to financial regulators and investors about safety. After a 9 week trial, and 10 days of deliberations, the jury brought back a guilty verdict of conspiring to willfully violate mine safety standards. This one will be analyzed for years, despite any appeals, despite any sentences imposed and despite any hindsight pontifications of how the case should have been tried by both sets of attorneys. One fact is certain—an executive got convicted.

The federal prosecutor maintained that Blankenship owed fiduciary duties to the company for compliance with mine safety and health laws and claimed that Blankenship was a “micromanager who meddled in the smallest details at the mine.” Purporting to sum up the thoughts of the other jurors, one juror pointed to testimony that Blankenship had told his subordinate manager to start up a mining process, after knowing it was illegal, telling the manager to not let the federal regulators run the mine. Despite a Hazard Elimination program, the jurors were informed that violations purportedly still went up. The jurors were presented with evidence of an emphasis on production and had concluded that Blankenship was responsible for safety failures.

In addition to his concerns over sentencing and restitution, Blankenship faces a rejection of an agreement with now bankrupt Alpha Natural Resources, Inc. (which bought Massey) to pay for his legal services incurred in the defense. Although the total final figure has not been disclosed, court documents as of April 1, 2015 show unpaid fees estimated at $5.8 million.

Two weeks after the verdict, the U.S. Department of Justice and the U.S. Department of Labor announced new plans to investigate and prosecute worker endangerment violations. Regardless of the ultimate outcome of the Blankenship case, a new day may have dawned for executive criminal liability.

So, what does all of this mean for any executive? While the legal mechanism has been in place for decades to go after top managers for workplace safety, the target just got repainted in bright red. What is your current involvement in the daily workplace safety of your company? What should be your involvement? A thorough inventory of how you conduct business is in order.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

THIS IS AN ADVERTISMENT