ELK Run Coal Co. v. United States Dep't of Labor

• Citation: 804 F.Supp.2d 8
• Decision Date: 18 August 2011
• Docket Number: Civil Action No. 10–1056 (JEB).
• Parties: ELK RUN COAL COMPANY, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

804 F.Supp.2d 8

ELK RUN COAL COMPANY, INC., et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.

Civil Action No. 10–1056 (JEB).

United States District Court, District of Columbia.

Aug. 18, 2011.

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Daniel W. Wolff, Timothy Maurice Biddle, Thomas Cornell Means, Crowell & Moring LLP, Washington, DC, for Plaintiffs.

Christopher R. Hall, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER JAMES E. BOASBERG, District Judge.

Plaintiffs are six underground coal mine operators who, among them, operate at least fourteen mines. They have brought this action against, inter alia, the Mine Safety and Health Administration, claiming MSHA has violated their constitutional rights. More specifically, Plaintiffs assert that they are being denied due process by MSHA's lack of appropriate procedures to resolve disputes over mine-ventilation plans. In now moving to dismiss the case, Defendants stress the Court's lack of jurisdiction to hear claims arising from the Federal Mine Safety and Health Act's exclusive administrative enforcement regime. Concluding jurisdiction does exist, the Court will permit certain pattern-and-practice claims to proceed, while granting Defendants' Motion in regard to Plaintiffs'

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facial constitutional challenge and other ancillary causes of action.

I. Factual BackgroundA. The Mine Act

In enacting the Federal Mine Safety and Health Act of 1977 (Mine Act), Congress declared, “[T]he first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner,” and “the existence of unsafe and unhealthful conditions and practices in the Nation's coal or other mines is a serious impediment to the future growth of the coal or other mining industry and cannot be tolerated.” 30 U.S.C. §§ 801(a) and (d). Congress thus passed the Mine Act to, in part, establish “mandatory health and safety standards” and require that “each operator of a coal or other mine and every miner in such mine comply with such standards.” §§ 801(g)(1)-(2).

The Mine Act “vests broad authority in the Secretary of Labor to promulgate regulations governing the mining industry and to investigate and remedy safety concerns.” Kerr–McGee Coal Corp. v. Federal Mine Safety and Health Review Commission, 40 F.3d 1257, 1259 (D.C.Cir.1995). The Act is administered by the Mine Safety and Health Administration (MSHA), a subdivision of the Department of Labor. MSHA “regulates mine operation in two ways. First, it promulgates pursuant to [30 U.S.C. § 811] regulations that establish general and mandatory standards with which all mine operators must comply. Second, it requires mine operators to compile comprehensive plans” containing individualized regulations tailored to specific components of each mine. United Mine Workers of America, Int'l Union v. Dole, 870 F.2d 662, 667 (D.C.Cir.1989).

Among the Act's requirements are that a mine operator submit and obtain approval of a ventilation plan for each operated mine. 30 U.S.C. § 863( o ). Section 863( o ) provides:

A ventilation system and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and approved by the Secretary shall be adopted by the operator and set out in printed form within ninety days after the operative date of this subchapter. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require.

A mine's ventilation plan must also be reviewed by MSHA every six months. Id.

Once a mine-ventilation plan has been approved by MSHA and adopted by the mine operator, the plan becomes enforceable as a mandatory health and safety standard under the Act. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C.Cir.1976); UMWA, 870 F.2d at 667. MSHA enforces the Act's mandatory health and safety standards through the issuance of citations that carry civil or criminal penalties. When the Secretary believes that a mine operator has violated the terms of “any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the operator.” 30 U.S.C. § 814(a).

The Mine Act also prescribes the procedures a mine operator must follow to contest the issuance of a citation or unfavorable order. See 30 U.S.C. §§ 815, 816, 823. Such disputes are adjudicated by an independent body—the Federal Mine Safety and Health Review Commission—created by the Act for this purpose. §§ 823, 815(d). The operator must contest the citation or

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order within 30 days of receiving it by notifying the Secretary. § 815(d). Upon receiving such notification, the Secretary “shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing.” Id. This initial hearing may be before an administrative law judge appointed by the Commission. § 823(d). A mine operator may appeal the ALJ's decision to the Commission as a whole. Id. A mine operator “adversely affected or aggrieved by an order of the Commission issued under this chapter may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or in the United States Court of Appeals for the District of Columbia Circuit ....” § 816(a)(1).

While the Mine Act prescribes the enforcement and appeal procedures governing the relationship between MSHA and a mine operator operating a mine with an approved ventilation plan, the Act does not explicitly outline the procedures that govern a pre-adoption/approval dispute between a mine operator and MSHA. Perhaps in recognition of this fact, MSHA has published two documents that describe the Agency's recommended practices: the Mine Ventilation Plan Approval Handbook No. PH92–V–6 (available at http:// msha. gov/ READROOM/ HANDBOOK/ PH 92– V– 6. pdf) and MSHA's Program Policy Manual, Reference V.G–4, Mine Plan Approval Procedures, “Contest of Mine Plan Approval Actions” (available at: http:// www. msha. gov/ REGS/ COMPLIAN/ PPM/ PMMAINTC. HTM) (Policy Manual).

Because the existence and sufficiency of the ventilation-plan dispute-resolution process described in the Policy Manual is at the heart of the dispute in the present case, the Court will reproduce the relevant portions at some length:

In those situations when MSHA can no longer accept a provision of an approved plan, cannot approve a provision in a new plan, or cannot approve a proposed change to an approved plan, operators should be afforded the opportunity to contest MSHA's denial of approval. Where the operator disagrees with MSHA and indicates the desire to seek a citation to contest before the Federal Mine Safety and Health Review Commission, a citation should be issued.

Id. at 4. When MSHA determines that a plan is no longer adequate, it may revoke approval of the plan:

Upon revocation of approval, a citation must be issued for operating without an approved mine plan. Abatement can then be accomplished by the operator adopting a plan provision satisfying MSHA's concern. It may be appropriate for the operator to have this acceptable plan provision prepared before the citation is issued so that prompt abatement occurs. With this approach, there is no need to operate in violation of the mine's approved plan, and the violation would be “technical” in nature.

Id.

In the case of an operator-proposed change to an existing approved mine plan, if approval of the change is denied, the operator could notify the District that, as of a certain date, the mine's existing approved plan is no longer adopted by the operator, and that the operator intends to adopt the proposed change which is not approved. On that date, a 104(a) citation would be issued for the operator's failure to have and adopt an approved plan. Abatement would be achieved by the operator promptly adopting the provisions of the most recently approved plan for the mine. Again, there need not be any changes made in the actual mining procedures,

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and the violation would be “technical” in nature.

Id. at 4–5.

The case of a new mine plan with a provision that cannot be approved could be handled in a similar manner. The operator could indicate that mining operations will begin on a particular date, using the plan that contains the provision which is not approved. On the date indicated for starting operations, a citation would be issued for failure to adopt and follow an approved plan, as required by the applicable standard. Abatement would be achieved by the operator promptly adopting provisions that satisfy MSHA's previously documented concerns....

In each of these cases, the operator would have the option of contesting the citation issued and presenting to an administrative law judge the reasons why the disputed plan provision should have been approved.

Id.

B. The Current Action

As the operators of underground coal mines, Plaintiffs are regulated by the Mine Act as enforced by the Secretary of Labor and MSHA. Compl., ¶ 2. On June 22, 2010, Plaintiffs filed this action against the Department of Labor, MSHA, and three MSHA officials in both their official and individual capacities. Id., ¶¶ 18–22. Plaintiffs assert claims under the Due Process Clause of the Fifth Amendment, the Declaratory Judgment Act, and the Administrative Procedure Act. Id., ¶ 1.

Plaintiffs' suit centers around the Mine Act's ventilation-plan approval process. Plaintiffs complain first that the Mine Act is facially unconstitutional because it “does not provide any dispute-resolution mechanism in the event an operator and MSHA cannot agree on the terms of a ventilation plan.” Id., ¶ 4...