Will Injunctions Become More Commonplace As Enforcement Tools?
By Adele Abrams
Despite press reports in non-mining media to the contrary, the Mine Safety & Health Administration (MSHA) has always been a strong agency, with many enforcement weapons in its arsenal. In addition to mandating inspections at least twice a year (surface) and quarterly (underground), the 1977 Mine Act also provided MSHA with warrantless search authority, no statute of limitations on violations, personal prosecutorial power under Section 110, and a strict liability framework for adjudication. None of these powers, by comparison, are possessed by MSHA’s sister agency, OSHA.
There is another power that MSHA also holds under the Mine Act, but one which it has rarely used … until now: the injunction. On Dec. 22, 2010, the US District Court for the Eastern District of Kentucky denied a mine operator’s Motion to Dismiss and held that MSHA could go to court to seek a preliminary injunction and close a mine when, in the Secretary of Labor’s judgment, it had a “pattern of violations” that constituted a hazard to the health or safety of miners. Moreover, the court held that a formal “pattern of violations” finding under Section 106 of the Mine Act was not a prerequisite to obtaining such injunctive relief.
On Jan. 5, 2011, shortly after the court issued its order in Solis v. Freedom Energy Mining Co. and Sidney Coal Co., Inc., the agency announced in a press release that it had reached a “settlement” with the company (which is owned by Massey Energy, the parent company that also owned and operated the Upper Big Branch Mine, where 29 miners perished in 2010). Massey announced plans to idle the Freedom Energy Mine No. 1 permanently.
Had the injunction actually taken effect, the operator would have had to close the mine temporarily, and take specific actions before it could reopen. In addition to correcting all hazardous conditions, MSHA also sought to require Freedom Energy to establish a safety and health management program for approval by MSHA, before it could resume production. That program would be required to establish an effective training and communications program, ensure that high-level mine officials conduct additional examinations, take additional air readings in critical areas, withdraw all miners when any violations were found in the future, and to pay miners who would be idled by such withdrawals.
This case has heightened interest in MSHA’s injunctive powers, which few fully understand. First, let’s examine the authority asserted in the case above. Section 108(a)(2) of the Mine Act, 30 USC §818(a)(2), states:
The Secretary may institute a civil action for relief, including permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the coal or other mine is located or in which the operator of such mine has his principal office whenever the Secretary believes that the operator of a coal or other mine is engaged in a pattern of violation of the mandatory health or safety standards of this chapter, which in the judgment of the Secretary constitutes a continuing hazard to the health or safety of miners.
A temporary (or preliminary) injunction is an order issued after a hearing, with both parties present, pending a full hearing. The requesting party (MSHA) must show that irreparable damage will occur if a Preliminary Injunctive Order is not issued to prevent the other party from engaging in, or continuing, illegal actions under the Mine Act. The case remains active, even if the preliminary injunction is denied, until a final decision is reached on the subject of a permanent injunction. In some circumstances, MSHA could also seek a temporary restraining order (TRO), which is also available upon a successful argument of irreparable harm that would occur before the case could be fully argued in court. MSHA can obtain a TRO ex parte, which means without the mine operator being present. If the matter proceeds to a permanent injunction, this constitutes a final order directing the other party to do what the court orders, and it is issued only after a full trial or hearing. In many cases, the record prepared in the preliminary injunction hearing bears heavily on the ruling for a permanent injunction.
The Freedom Energy case marks the first time in 33 years that MSHA actually sought to shut down a mine entirely because of safety and health infractions, although – as discussed below – it is not the first time that MSHA has obtained injunctive relief against a mine operator. MSHA filed against Massey’s Freedom Mine No. 1 because, in the words of MSHA chief Joe Main, “Freedom Energy has demonstrated time and again that it cannot be trusted to follow basic safety rules.” During its eight regular inspections from July 2008 through June 2010, the mine operator received 1,952 citations and 81 orders (including 53 under Section 104(d)(2) of the Act) for violations involving mine ventilation, roof support, combustible dust, electrical infractions, and failure to properly examine work areas. During the same period, seven miners were injured by falling roof at the mine, which had six major roof falls just since August 2010. MSHA certainly found the proper target in selecting this mine as the poster child for injunctive relief!
But could this happen to a metal/nonmetal operator? Surely those mines, which rarely exceed 100 violations in a year, would be immune from having MSHA – via an injunction – seize control of the mine and shut down production until all safety hazards are remediated. Not so fast … Patricia Smith, the Solicitor of Labor, commented, “Although this is the first time the department has utilized this legal remedy, it will not be the last. The solicitor’s office will work closely with MSHA to ensure that we use every tool possible to keep miners safe.”
The critical issue is that the language of the Mine Act is unclear what type of “pattern” of violations is sufficient to warrant the issuance of an injunction. The US District Court, in its December 2010 Memorandum Opinion and Order, explained:
“Whenever,” the statute says. “Whenever” the Secretary “believes” that a mine operator is engaged in a “pattern of violation” of safety standards – a pattern that, in her “judgment,” constitutes a “hazard to the health or safety of miners” – she may come to court for relief. The defendant mine operators nonetheless insist the Secretary must first exhaust her own administrative remedies. But the text of §818(a)(2), whether considered alone or alongside the rest of the statute and regulations, is clear. The Secretary can come to court now. [emphasis in original]
What Does This Mean?
The defendant mine operators in the case had argued that the use of the term “pattern of violation” in Section 108(a)(2) referred back to the Mine Act’s previous provisions on “pattern of violations” (Section 104(e)), which was ultimately codified at 30 CFR Part 106 and which has been the subject of varying MSHA policy pronouncements over the years including a recent iteration in 2010, as well as being the focus of the 2010 mine safety legislation that failed in the lame duck session of Congress. The company argued, in its Motion to Dismiss the injunctive action, that the Secretary of Labor had gone to court pleading an assortment of “vague, speculative and conclusory allegations, unsupported by reliable factual assertions” and therefore the pleadings were impermissibly vague. The court quickly shot down that argument.
The more substantive argument, which was resolved by the court, was that MSHA was asserting that Freedom Energy had a “pattern of violations” but that this was a term of art under Section 104(e) of the Mine Act and that the mine operator had never been determined by MSHA to meet the POV criteria in that section (or MSHA policy), nor had MSHA sought to place Freedom Energy under a POV before seeking the assistance of the court. The company noted that a “pattern” determination subjects the mine operator to heightened scrutiny and gave the Secretary a unilateral enforcement tool that did not require the court’s approval before the agency could carry out its POV authority. Because the Secretary failed to go through the POV process under Section 104(e), it could not meet a prerequisite needed to obtain injunctive relief under Section 108(a)(2).
Not so, the court ruled. It found the language in Section 108(a)(2) plain that “the Secretary can come to court to eliminate the ‘continuing hazard’ without trudging through a series of administrative procedures.” MSHA can come to court “whenever.” The grant of standing to get an injunction is based entirely on “the Secretary’s good-faith belief that a suspected continuing pattern of violations is being committed by one she believes to be an operator.”
This is potentially scary stuff, because it obviates the need for a mine to meet the POV criteria (which, to date, have applied largely to underground coal mines and a few unlucky large metal/nonmetal operations) and therefore eliminates any objective criteria as a necessary basis for such a “good faith belief.” Simply put, virtually any mine operator who has the bad luck to get a lot of citations in a single inspection could be at risk of being shut down and required to implement any programs that MSHA demands in order to reopen.
Whether MSHA will use this tool wisely, in the wake of the court’s ruling, or experiment with it to push the limits of what a U.S. District Court will view as a “pattern,” remains to be seen. But it is worth noting that having a bad history of violations is not the only thing that can trigger injunctive relief. While the Freedom Energy case was still pending, in December 2010, MSHA also obtained a court order imposing requirements on the Sullivan Granite Co. of Maine, which operated a small quarry. The US District Court judge granted a TRO and ordered the mine owner/operator to cease operating the mine until all cited and outstanding safety and health violations were corrected and were verified as such by an MSHA inspector. The operator was also ordered not to take any action to impede or interfere with MSHA inspectors during their inspection activities. The mine had problems with MSHA dating back to the summer, when the company allegedly violated withdrawal orders issued by MSHA, denied inspectors entry, failed to abate violations, refused access to equipment at the quarry, and rejected requests to produce documents and information.
Section 108(a)(1) of the Mine Act also provides for injunctive relief whenever the mine operator:
(A) violates or fails or refuses to comply with any order or decision issued under this Act,
(B) interferes with, hinders, or delays the Secretary or his authorized representative, or the Secretary of Health, Education, and Welfare or his authorized representative, in carrying out the provisions of this Act,
(C) refuses to admit such representatives to the coal or other mine,
(D) refuses to permit the inspection of the coal or other mine, or the investigation of an accident or occupational disease occurring in, or connected with, such mine,
(E) refuses to furnish any information or report requested by the Secretary or the Secretary of Health, Education, and Welfare in furtherance of the provisions of this Act, or
(F) refuses to permit access to, and copying of, such records as the Secretary or the Secretary of Health, Education, and Welfare determines necessary in carrying out the provisions of this Act.
Another use of injunctive relief relates to payment of delinquent penalties. In the 2006 MINER Act, Congress gave the agency new authority to request an injunction and shut down a mine in cases where the mine refuses to pay a final order MSHA penalty. Following enactment of that law MSHA quickly set precedent by seeking an injunction against several operators who owed money – in one case, as little as $5,000 in civil penalties from citations.
Will injunctions become more commonplace as enforcement tools? The evidence would indicate that MSHA is enamored of this approach and the courts will readily defer to the Secretary’s “judgment” of who is a bad operator in need of sanctions. It certainly is a more viable way to bring a mine into compliance than the Byzantine approach currently encompassed in the agency’s POV criteria. E