The Doe Run Company v. Secretary of Labor and Secretary of Labor v. The Doe Run Company

Plain-English summary

MSHA cited five Doe Run mines under 30 C.F.R. § 57.11050(a), alleging that two escapeways were not provided from all working areas. Doe Run argued that the two-escapeway requirement applied only to the mines' lowest levels, and the parties completed a four-day trial before settling. Under the agreement, MSHA vacated all five citations and Doe Run agreed to install and use refuge chambers, designated points of safety, and other protective measures in single-access areas. The agreement also established an enforceable compliance method for Doe Run's existing mines unless later rulemaking changes the relevant escape provisions. Judge David P. Simonton approved the agreement and dismissed the contest dockets and four penalty dockets. This amended release clarified that Citation No. 8960639 in CENT 2016-393 was outside the settlement, so that penalty docket was not dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.11050(a)
• Outcome: Five escapeway citations were vacated under an enforceable settlement, while penalty docket CENT 2016-393 remained pending.
• Key point: The settlement replaced the disputed two-escapeway interpretation with specified refuge chambers, designated safety points, and other protections across Doe Run's mines.
• Amendment: The December 7 decision corrected the original release to exclude Citation No. 8960639 and CENT 2016-393 from the settlement.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19 th Street, Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 7, 2016

THE
DOE RUN COMPANY,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent.

CONTEST
PROCEEDINGS

Docket
No. CENT 2016-279-RM

Citation
No. 8626619; 03/17/2016

Sweetwater
Mine/Mill

Mine
ID 23-00458

Docket
No. CENT 2016-280-RM

Citation
No. 8626620; 03/17/2016

Viburnum

29 Mine

Mine
ID 23-00495

Docket
No. CENT 2016-281-RM

Citation
No. 8626621; 03/17/2016

Brushy
Creek Mine/Mill

Mine
ID 23-00499

Docket
No. CENT 2016-282-RM

Citation
No. 8626622; 03/17/2016

Fletcher
Mine/Mill

Mine
ID 23-00409

Docket
No. CENT 2016-283-RM

Citation
No. 8626623; 03/17/2016

Viburnum

35 (Casteel Mine)

Mine
ID 23-01800

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

THE
DOE RUN COMPANY,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. CENT 2016-392

A.C.
No. 23-00409-408952

Mine:
Fletcher Mine and Mill

Docket
No. CENT 2016-393

A.C.
No. 23-00458-408953

Mine:
Sweetwater Mine/Mill

Docket
No. CENT 2016-394

A.C.
No. 23-00495-408954

Mine:
Viburnum #29 Mine

Docket
No. CENT 2016-395

A.C.
No. 23-00499-408955

Mine:
Brushy Creek Mine/Mill

Docket
No. CENT 2016-396

A.C.
No. 23-01800-408957

Mine:
Viburnum #35 (Casteel Mine)

AMENDED DECISION
APPROVING SETTLEMENT [1]

ORDER TO DISMISS

Before:
Judge Simonton

These
dockets are before me upon The Doe Run Resources Corporation’s (“The Doe Run
Company” or “Doe Run”) notices of contest and the Secretary’s petitions for
assessment of civil penalty issued in accordance with the provisions of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (“Mine
Act”) and 29 C.F.R. § 2700.50 et seq. The Parties have filed a Joint
Motion to Approve Settlement and Dismiss Proceeding, as well as a formal
Agreement with Figures 1-8 appended thereto (the “Agreement”).

On March 17, 2016, MSHA issued Citation
Nos. 8626619, 8626620, 8626621, 8626622 and 8626623 to multiple Doe Run mines
alleging violations of 30 C.F.R. § 57.11050(a) on the basis that two escapeways
were not provided to the surface from all working areas. Doe Run timely
contested the issuance of each citation pursuant to 29 C.F.R. § 2700.20. Doe
Run further contested the proposed penalty assessments to the aforementioned
citations pursuant to 29 C.F.R. § 2700.26. On August 19, 2016, I granted the
Secretary’s Unopposed Motion to Consolidate and Stay Civil Penalty Proceedings
which consolidated the Contest cases with the Civil Penalty cases and stayed
the Civil Penalty cases pending a final resolution of the Contest cases. 

Doe Run maintains that 30 C.F.R. §
57.11050(a) limits the two escapeway requirement to the lowest levels of the
mine rather than all working areas. MSHA disagrees. Beginning on June 20, 2016,
a four (4) day trial on the merits was held before me in St. Louis, Missouri. Recognizing,
however, the risks associated with an adverse ruling against either Party, as
well as facts and circumstances specific to the Doe Run mines and Department of
Labor’s administration of the Mine Act at these mines, the Parties engaged in
significant settlement discussions following the trial which resulted in a
comprehensive settlement agreement. As set forth in the Agreement, in
consideration of MSHA voluntarily vacating Citation Nos. 8626619, 8626620,
8626621, 8626622 and 8626623, Doe Run will, among other things, locate and
install Refuge Chambers and designated points of safety (“DPOS”) in single
access areas as specified in the Agreement.

The Commission has made clear that
“[s]ettlement of contested issues is an integral part of dispute resolution
under the Mine Act.” Hickory Coal Co., 16 FMSHRC 226 (Rev. Comm. February
1994) . A settlement agreement is a form of contract; therefore, basic
principles of contract law govern the existence and enforcement of such
agreements. Chaganti & Assocs., P.C. v. Nowotny , 470 F.3d 1215, 1221
(8th Cir. 2006); MLF Realty L.P. v. Rochester Ass’n, 92 F.3d 752, 756
(8th Cir. 1996). To establish a contract with the United States, as is the case
here, the party seeking to enforce the contract must demonstrate a mutual
intent to contract, including an offer, an acceptance, and consideration, as
well as a showing that the government representative had actual authority to
bind the United States. Compliance Sols. Occupational Trainers, Inc. v.
United States , 118 Fed. Cl. 402 (2014); Anderson v. United States ,
344 F.3d 1343, 1353 (Fed. Cr. 2003).

After thoroughly reviewing the
Agreement, it is clear to me that the Agreement is the product of extensive
negotiation over a number of months between the Parties. It is further evident
that the terms of the Agreement were negotiated and approved by Neal H.
Merrifield, Administrator for Metal and Nonmetal Safety and Health, and Steve
Batts, Vice-President Southeast Missouri Operations, both of whom have the
authority to enter into the Agreement on behalf of MSHA and Doe Run,
respectively. It is unmistakable that the Parties intend for the Agreement to
be legally binding upon and shall inure to the benefit of each of them and
their respective successors and assigns. In sum, I find that the Parties’
Agreement contains all of the necessary elements of an enforceable contract,
including mutual intent, offer, acceptance, consideration and authority to
bind.

It is also evident that the Agreement is
designed (1) to resolve the current litigation and (2) absent future rulemaking
modifying relevant miner escape provisions in Subpart J of 30 CFR Part 57, to
provide a defined and enforceable means of compliance with the escapeway
provisions contained in 30 C.F.R. § 57.11050(a) (as such standard exists as of
the date of the Agreement) at all currently existing Doe Run mines (comprising
of Sweetwater Mine/Mill, Mine ID No. 23-00458; Viburnum #29 Mine, Mine ID No.
23-00495; Brushy Creek Mine/Mill, Mine ID No. 23-00499; Fletcher Mine/Mill,
Mine ID No. 23-00409; Viburnum #35 Casteel Mine, Mine ID No. 23-01800; and
Buick Mine, Mine ID No. 23-00457) presently and in the future. In the event Doe
Run consolidates any of the aforementioned mines and/or MSHA assigns new Mine
IDs to the aforementioned mines, the Parties intend for the Agreement to apply
to the consolidated mine(s) (regardless of mine name) and newly issued mine
IDs.

ORDER

After considering the representations
and documentation submitted in this case, I conclude that the Agreement is
appropriate under the criteria set forth in the Mine Act.

WHEREFORE , the Parties’
Joint Motion to Approve Settlement and Dismiss Proceeding is GRANTED .

It is ORDERED that Citation Nos.
8626619, 8626620, 8626621, 8626622 and 8626623 are vacated.

It is FURTHER ORDERED that the
Parties’ Agreement be approved as an enforceable Order of the Federal Mine
Safety and Health Review Commission.

It is FURTHER ORDERED that Doe
Run locate and use Refuge Chambers and DPOSs and follow other protective
provisions as provided in the Agreement.

It is FURTHER ORDERED that absent
future rulemaking modifying relevant miner escape provisions in Subpart J of 30
CFR Part 57, the Agreement is to provide a defined and enforceable means of
compliance with the escapeway provisions contained in 30 C.F.R. § 57.11050(a)
(as such regulation exists as of the date of the Agreement) at all Doe Run
mines (Sweetwater Mine/Mill, Mine ID No. 23-00458; Viburnum #29 Mine, Mine ID
No. 23-00495; Brushy Creek Mine/Mill, Mine ID No. 23-00499; Fletcher Mine/Mill,
Mine ID No. 23-00409; Viburnum #35 Casteel Mine, Mine ID No. 23-01800; and
Buick Mine, Mine ID No. 23-00457) presently and in the future.

It is FURTHER ORDERED that the
above-captioned Contest dockets, as well as Penalty Docket Nos. CENT 2016-392,
CENT 2016-394, CENT 2016-395, and CENT 2016-396 be dismissed.

/s/ David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S.
First Class Mail)

Stephen
D. Turow, Attorney, U.S. Dept. of Labor, Office of the Solicitor, 201 12 th
St. South, Suite 401, Arlington, VA 22202-5450

Jamison
Poindexter Milford, Attorney, U.S. Dept. of Labor, Office of the Solicitor, Two
Pershing Square Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108

Ryan
D. Seelke, Attorney, Steelman, Gaunt & Horsefield, 901 Pine Street, Suite
110, Rolla, MO 65401

R.
Henry Moore, Arthur M. Wolfson, Patrick W. Dennison, Attorneys, Jackson Kelly
PLLC, Gateway Center, Suite 1500, 401 Liberty Ave., Pittsburgh, PA 15222

[1] This Decision
Approving Settlement has been amended to clarify that Citation No. 8960639 in
Docket No. CENT 2016-393 is not included in this settlement. Accordingly, the
Decision amends the last sentence to reflect the fact that all penalty dockets,
except for CENT 2016-393, are dismissed.