ALJ’S DECISION IN ERP CASE REQUIRES DISTRICT MANAGER TO LOOK AT SPECIFICS OF MINE

For clients and friends of Jackson Kelly PLLC

Volume 6,  Number 17

©2010 Jackson Kelly PLLC

 

On July 6, 2010, Judge Manning issued a decision in Peabody Midwest Mining, LLC, Docket Nos. LAKE 2010-769 and LAKE 2010-770 (ALJ Manning), in a case arising from a challenge by Peabody Midwest Mining, LLC (“Peabody”) of a District Manager’s refusal to approve its emergency response plan (“ERP”) at two mines.  The Mine Act, as amended by the MINER Act, requires operators to submit an ERP establishing a plan for the safe evacuation of and survival of miners in the event of an emergency.  In this case, MSHA Coal District 8 had refused to approve a plan that did not satisfy the electronic tracking specifications provided for in a program policy letter (“PPL”) relating to ERPs.  Specifically, MSHA insisted that Peabody comply with the PPL guideline that each mine’s system be capable of electronically tracking miners to within 200 feet of their locations in a working section.  Judge Manning vacated the citations, concluding that the District Manager had improperly relied upon the PPL and insisted upon a plan provision without considering the individual characteristics of the subject mines. 

The case arose from the issuance of citations at Peabody’s Wildcat Hills and Francisco mines for Peabody’s alleged failure to submit ERPs that provided sufficiently precise electronic capability to track miners on the working sections of the mines.  Section 316(b)(2)(E)(ii) of the MINER Act requires that “the plan shall provide for above ground personnel to determine the current, or immediately pre-accident, location of all underground personnel.”  Rather than engaging in rulemaking to expand upon the meaning of the statute, MSHA issued a PPL in January 2009 entitled “Guidance for Compliance with Post-Accident Two-Way Communications and Electronic Tracking Requirements of the MINER Act” (PPL No. P09-V-01).  The PPL provided that “while operators and District Managers must consider mine-specific circumstances in determining an appropriate electronic tracking system . . . an effective electronic tracking generally should be capable of . . . [d]etermining the location of miners on a working section to within 200 feet.” P09-V-01 (emphasis added).  Peabody acknowledged that it could not guarantee that its electronic tracking system was capable of identifying miners to within 200 feet of their location in the working section.  Ultimately, the plan was rejected and the citations issued because Peabody’s system could not comply with the 200-foot requirement.

Judge Manning vacated the citations, finding that the District Manager acted arbitrarily and capriciously when he required, without any mine-specific basis, that Peabody satisfy the 200-foot guidance found in the PPL.  There was testimony from the District Manager stating that he enforced the 200-foot guidance, although he could not explain why that distance was crucial to miner safety.  Judge Manning stated that the District Manager’s “mechanical application” of the PPL was improper and that it was incumbent upon the parties herein to “adopt ERPs that account for the specific physical characteristics of each mine.”  Judge Manning further held that the determination of whether such a tracking system is necessary “requires a comprehensive review of the specific physical characteristics of that mine.”  Relying upon the Commission’s decision in Carbon County, 7 FMSHRC 1367 (Rev. Comm. Sept. 1985), Judge Manning held that the District Manager abused his discretion when he reflexively applied the PPL guidance without such an inquiry.  In the final analysis, he held the District Manager “must explain to Peabody why the particular tracking distance he wants to include in the ERP is appropriate for these particular mines” taking into account the objections and comments raised by Peabody. 

The Secretary has not indicated whether she will appeal Judge Manning’s decision.  Pursuant to § 2700.24(g) and § 2700.70 of the Commission’s Procedural Rules, the Secretary has 30 days to file a Petition for Discretionary Review (“PDR”) with the Commission.  Upon its receipt, the Commission is required to act upon a PDR on an expedited basis.

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP

Denver, Colorado

Responsible Attorney

Karen L. Johnston

(303) 390-0008

kjohnston@jacksonkelly.com

 

For more information, contact:

 

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0003
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

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