Vol. 21, Nos. 22 & 24

  • Accidents:
    • Rail worker loses arm at Badger Mining Sand Plant (716)
    • Miner Seriously injured by ram car at Darby Fork No1 (716)
    • Two coal miners suffer chemical burns at Rosebud’s Twin Rocks Mine (717)
    • Clogged rock duster injures miner at Onton #9 (718)
    • Silicosis Diagnosed At Elko Quartz Plant (718)
    • After Roof Rock Injures Two, Unwarrantable Failures Cited At Springfield Pike Mine (718)
    • 2nd Miner This Year Has Leg Broken By Roof Fall In Elk Creek Mine (719)
    • Worker Sustains Neck Fracture In Fall At Saunders Coal Prep Plant (720)
    • 5-Foot Fall At Rosebud Mine Causes Broken Ribs and Internal Bleeding (720)
    • Driver Hurt When Coal Hauler Loses Wheel In Wildcat Hills Mine (721)
    • Prairie Eagle-Underground reports 4th worker hurt by rock fall in 2 months (721)
    • Worker Survives being pinned by continuous miner at JWR No7 (722)
    • Attempt To bypass circuit breaker burns employee at Laredo Paving (722)
    • Chemical reagent causes illness at Newmont’s Twin Creeks Mine (722)
    • Contract foreman at Decker Coal escapes moving belt with minor fracture (723)
    • Civil Penalties:
      • Delinquent operator comes up with payment plan in 40 minutes of closure order (723)
      • With delinquent penalties, Ouachita Gravel faces $57,500 in penalties after leg amputation (728)
      • Hidden Splendor case sent back to ALJ; information needed on penalty reduction (728)
      • Speakers at MSHA hearing: Don’t mess with FMSHRC jurisdiction (729)
    • Discrimination: Discrimination case can move forward despite company’s bankruptcy proceeding (732)
    • Equal Access to Justice Act: Patriot contractor not entitled to EAJA fees based on contract agreement (733)
    • Fatalities:
      • Novice miner killed at Zeotech Plant (734)
      • Contract Supervisor dies in fall of load from crane at Bayer Plant (734)
      • Miner struck down by ram car at Highland 9, site of four “impact” inspections (735)
      • Safety Instructions could have prevented death of Gypsum Mtnmine owner (737)
      • Klondex driller was alone at time of fatal entanglement (738)
      • Guard drowned at Crown Hill Coal Facility was intoxicated, W.Vareports (740)
    • On the Move: Williamson named as Special Assistant (742)
    • Private Suits:
      • Evidence lacking for any scheme to shut down Left Fork Mine (743)
      • Ohio court dismisses Murray suit; notes chilling effect on free speech (744)
    • Suspended Loads: Unwarrantable failure criteria not met in crane assembly project (745)
    • Review Commission Orders and ALJ Decisions (747)

Support the FOIA Improvement Act of 2014, S. 2520

Senator Rockefeller, D-W.Va., currently has placed a hold on the FOIA Improvement Act of 2014. We believe this bill should pass, and Rockefeller should life his hold.

On November 20 the US Senate Judiciary Committee unanimously passed crucial legislation to reform the Freedom of Information Act (FOIA). The bipartisan bill, S. 2520, the FOIA Improvement Act of 2014, builds on past FOIA reforms and reins in the over-use of FOIA’s exemptions. S. 2520 shares several provisions that are included in HR 1211, the FOIA Oversight and Implementation Act of 2014, which was passed unanimously by the House earlier this year.

What the FOIA Improvement Act Does:

· Locks in the presumption of openness by requiring that a federal agency release information responsive to a FOIA request unless the agency is required to withhold it under the law, or if there is a foreseeable harm in releasing the information.
· Amends the “catch-all” exemption by limiting the use of exemption 5 to material that is less than 25 years old, bringing it more in line with privileges for Presidential records.
· Strengthens the FOIA ombuds office, the Office of Government Information Services, by giving it the ability to bypass review of its recommendations to change FOIA practices by the Office of Management and Budget (OMB) before submitting them to Congress and the President. OMB review can be lengthy, and OMB can demand that OGIS make certain changes before the recommendations are released. The bill also clarifies OGIS’ ability to issue advisory opinions at its discretion.
· Increases oversight by giving the Government Accountability Office responsibility for auditing agency compliance with the law. The bill also requires the GAO to catalog the estimated hundreds of provisions that require agencies to withhold information that are scattered throughout the US Code.
· Encourages agencies to make more information available online by requiring agencies to post released records that have been requested three times. The bill also amends the Federal Records Act to require agencies to have a system for identifying records of general interest or use to the public that should be made available as a matter of practice, without a FOIA request.
· Clarifies an agency cannot charge fees if it fails to meet the statutory deadlines. In 2007 Congress amended the law to motivate agencies to meet the statutory deadlines for replying to requests by prohibiting agencies from collecting fees if they miss the deadline. S. 2520 closes a loophole agencies have been abusing to collect search and duplication fees when they claim “unusual circumstances” cause them to miss the statutory deadline to respond.
· Sets up a system for agencies to share best practices by establishing a Chief FOIA Officer Council. The Chief FOIA Officer Council is charged with developing recommendations for increasing agency compliance with the law and increasing efficiency, sharing best agency practices, and coordinating government-wide efforts to increase transparency and open government.

Don’t File a FOIA Request

I am frequently asked questions about filing a Freedom of Information Act request with MSHA for reports, citations, orders, or notices regarding mines/operators.

My advice? Don’t file a FOIA request. It’s a waste of time. Much of the information sought by the public “shall be made available for public inspection” under Section 109(b) of the Mine Act.

A FOIA request triggers a long, unnecessary process that the Mine Act sought to avoid. The legislative history is clear that Congress wanted all of the information out on the proverbial table.

Legislative acts, such as the Mine Act, use the word “shall” to express mandatory language, or to denote that something is required. In this case, Congress clearly required that any notice, order, citation or decision that MSHA makes regarding a mine shall be made available for public inspection.

For the record, here is what anyone is entitled to without a FOIA request.

Sec. 109(b) The Secretary shall (1) cause a copy of any order, citation, notice, or decision required by this Act to be given to an operator to be mailed immediately to a representative of the miners in the affected coal or other mine, and (2) cause a copy thereof to be mailed to the public official or agency of the State charged with administering State laws, if any, relating to health or safety in such mine. Such notice, order, citation, or decision shall be available for public inspection.

So, if you are seeking a copy of any order, citation, notice or decision required by the Mine Act, and you are asked to file a FOIA request, my advice is refuse. If MSHA or DOL refuses to give you the information unless you file a FOIA request, file a lawsuit instead.