The Doe Run Company v. Secretary of Labor and Secretary of Labor v. The Doe Run Company (ALJ decision, November 16, 2016)

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 requirement applied only to the mines' lowest levels, and the parties completed a four-day trial before reaching a comprehensive settlement. MSHA agreed to vacate the five citations, while Doe Run agreed to install and use refuge chambers, designated points of safety, and other protections in single-access areas. Judge David P. Simonton approved the agreement as an enforceable Commission order and directed that all captioned contest and penalty dockets be dismissed. The judge later replaced this release with an amended decision clarifying that Citation No. 8960639 was not part of the settlement and that CENT 2016-393 remained pending.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.11050(a)
• Outcome: Five escapeway citations were vacated under an enforceable settlement, and the original order dismissed all captioned contest and penalty dockets.
• Superseding decision: The amended decision in cent-2016-283-rm-alj preserved penalty docket CENT 2016-393.
• Key point: The settlement established refuge chambers, designated safety points, and other protective measures as Doe Run's enforceable compliance method.

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

November 16,
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)

DECISION
APPROVING SETTLEMENT

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 and Penalty dockets 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