US v. Stillwell, Crim. No. 1:91-00389-03.

• Decision Date: 18 September 1992
• Docket Number: Crim. No. 1:91-00389-03.
• Citation: 799 F. Supp. 615
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. Curtis STILLWELL.

799 F. Supp. 615

UNITED STATES of America v. Curtis STILLWELL.

Crim. No. 1:91-00389-03.

United States District Court, S.D. West Virginia, Bluefield Division.

September 18, 1992.

Phillip B. Scott, Asst. U.S. Atty., Charleston, W.Va., for U.S.

William Flanigan, Princeton, W.Va., for Stillwell.

OPINION

FABER, District Judge.

On January 16, 1991, an explosion occurred in the Fire Creek No. 1 Mine near Superior in McDowell County, West Virginia, killing two men. An investigation followed which produced the original indictment in this case charging Fire Creek and certain of its agents and employees with criminal violations of the Federal Mine Safety and Health Act of 1977. (30 U.S.C. §§ 801 et seq.) (hereinafter the "Act").

A thirty-two-count superseding indictment was returned by a federal grand jury in Charleston, West Virginia, on April 28, 1992. This opinion addresses the validity of several counts of that superseding indictment. The charges contained in the superseding indictment fall generally into two groups. The first group alleges wilful violations of mandatory safety standards pertaining to pre-shift examinations, operation of the mine fan, and ventilation, all in violation of 30 U.S.C. § 820(d), and related false representations said to have been made in records required to be kept by the Act in violation of 30 U.S.C. § 820(f). The second group charges violations of the mandatory safety standards prohibiting smoking articles underground (30 U.S.C. § 877(c)) and related false representations allegedly made in records of searches for smoking articles required to be kept under the Act.

Curtis Stillwell, one of the individual defendants named in the original and in the superseding indictments, has filed a renewed motion to dismiss which questions the validity of nine specific counts contained in the superseding indictment. Stillwell challenges Counts Two and Eight which allege violations of mandatory safety standards applicable to mine ventilation plans. The remaining counts of the superseding indictment attacked by Stillwell in his renewed motion to dismiss are Counts Four and Fourteen, charging violations of 30 U.S.C. § 877(c), which prohibits smoking articles underground and requires the operator to institute a program, approved by the Secretary of Labor, to insure compliance; and Counts Eighteen through Twenty-two, which charge that false entries pertaining to searches for smokers' articles were made in records required to be kept under the Act in violation of 30 U.S.C. § 820(f). The searches for smokers' articles at issue are called for in Fire Creek's Smoking Program Plan—the program instituted by Fire Creek pursuant to the mandate of 30 U.S.C. § 877(c). This plan required Fire Creek to conduct searches for smoking articles at specified intervals.

Defendant Stillwell contends that the challenged counts must fall because Fire Creek's Smoking Program Plan and Mine Ventilation Plan are not enforceable mandatory safety standards under the Act. Such plans, it is argued, are merely "private agreements" between the Secretary and Fire Creek; to constitute valid mandatory safety standards, defendant contends, the formal rule-making procedures contained in 30 U.S.C. § 811 must be followed. These procedures were not followed with regard to such plans.

In ruling upon the pending motions, the court is essentially confronted with the problem of determining what Congress had in mind with regard to the challenged provisions. The court's role is to "conscientiously attempt to ascertain and faithfully carry out the intent of Congress,"^* so long as no well-established principle of the Constitution is violated. For purposes of ruling upon a motion to dismiss it is necessary to look to the charges of the indictment itself without reference to the anticipated underlying proof. If a motion to dismiss attacks the sufficiency of an indictment, the allegations of that indictment must be taken as true. United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). Evidence outside the indictment should normally not be considered. United States v. Besmajian, 910 F.2d 1153 (3d Cir.1990).

Modern law relating to regulation of health and safety in the nation's coal mines dates to 1969 when Congress passed the Federal Coal Mine Health and Safety Act. This Act greatly increased federal regulation of coal mines, providing for mine inspections and establishing a complex pattern of civil and criminal penalties for violations of the Act's provisions. Imposition of criminal penalties was confined to wilful violations of mandatory safety standards.

The Act was modified in legislation known as the Federal Mine Safety and Health Act of 1977. The concept of the mandatory safety standard as the basis for imposition of criminal penalties remained unchanged. Before criminal penalties could be imposed for violations of the Act a wilful violation of a mandatory safety standard was required. As part of the 1969 Act, Congress had established a number of interim mandatory safety standards which are codified at 30 U.S.C. §§ 861-878. These interim standards provide highly specific requirements relating to ventilation, fire protection and many other details of coal mining. The intent of Congress in establishing these interim standards was to provide a minimum level of protection, but Congress realized that due to developing technology in mining and for other reasons the standards should be allowed to evolve to adjust to changing circumstances and to benefit from experience gained as the standards were put into force. Accordingly, Congress authorized the Secretary of the Interior (now the Secretary of Labor under the 1977 amendments) to promulgate improved mandatory safety standards by means of a complex rule-making process set forth at 30 U.S.C. § 811. New regulations, when promulgated pursuant to section 811, were to replace the statutory interim mandatory standards and become improved mandatory safety standards the violation of which would remain punishable by criminal sanctions.

30 U.S.C. § 811 directs the Secretary to "develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards." Formal rule-making procedures are required for standards devised under this section 811 mandate. However, when Congress has directed or authorized a specific action of the Secretary incident to, or as part of, one of Congress's own mandatory interim standards, the section 811 procedures are not required. Such directions contained in the specific interim standards are "self-executing" and become in that instance part of the particular mandatory statutory standard without resort to the formal section 811 rule-making procedures. In United States v. Finley Coal Co., 345 F.Supp. 62 (E.D.Ky.1972), aff'd, 493 F.2d 285 (6th Cir. 1974), the court held that regulations or standards promulgated by the Secretary in response to specific authority granted in the interim statutory standards do not require resort to the section 811 procedures. The authority granted the Secretary to approve smoking plans under section 877 was offered as an example of action in which the Secretary was not required to follow the section 811 rule-making procedures. Finley Coal was followed on this point by the court in United States v. Consolidated Coal Co., 424 F.Supp. 577, 583-85 (S.D.Ohio 1976). There, the court spoke of a "distinction ... between what could be called self-executing statutes and those dependent upon section 811." Accordingly, the section 811 formal rule-making procedures would appear to be required only where the Secretary acts without specific Congressional guidance in accordance with her general mandate to "develop, promulgate and revise ... improved mandatory health or safety...