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Current Issue: Vol. 22, No. 12 & 13 | August 15, 2015

  • Accidents:
    • Employee Severely hurt by arc flash at Lee Creek Phosphate Mine (264)
    • Dozer operator needs spleen removed after injury at Barrick Cortez (265)
    • First reported injury at Friendsville Sand might have been fatal (266)
    • 44-employee CVB No. 1, site of rib-roll injury, has 22 hurt in less than 2 years
    • (267)
    • Two knocked down but unhurt in possible explosion at D-10 Dorchester (267)
    • Massive roof fall spares approaching employee at Buchanan #1 (268)
    • Roof fell around mobile supports during retreat mining at Black Oak (268)
    • Five workers get chemical burns from wet concrete at Kosse Strip (269)
    • Defective welding equipment causes electric shock at Roanoke Cement (270)
    • Continuous miner operator survives collision with machine at XMV No. 40 (270)
  • Civil Penalties: Dissolution of company renders $1.6 million in fines uncollectible; cases moot (271)
  • Discovery: Judge denies sanctions against small operator in discovery dispute (272)
  • Discrimination:
    • 3rd Circuit sends case back to FMSHRC because of conflicting opinions (273)
    • Murray Energy ordered to temporarily reinstate miner who was fired for writing profanity on check (274)
    • ALJ rejects handwriting expert testimony in decision on remand (275)
    • Equal Access to Justice Act: Company awarded fees where delay in inspection was justified (276)
  • Examinations: Case remanded for unwarrantable failure analysis where parts of mine impassible (278)
  • Fatalities:
    • 18-year old dies in silo collapse at Luck Stone (279)
    • Loader operator engulfed in stockpile slide at Pinky’s Aggregates (280)
    • Drill operator dies in Small Mine Development’s SSX Underground Gold Operation (281)
    • United Salt pays $4,564 in penalties following mechanic’s death At Hockley Mine (282)
    • Lack of safe overhead-storage access caused death at Gardenscape of New York (284)
    • Diesel unit had multiple safety issues in fatality at West Ridge Mine (285)
  • Part 50 Reporting: Court denial upholds reporting of smoldering coal stockpile (289)
  • Respirable Dust: year-old respirable-dust rule working out fine so far, Main reports (291)
  • Settlements:
    • Fly rock settlement rejected where Secretary sought 97% penalty reduction (292)
    • Judge reluctantly dismisses case where Secretary vacates citation instead of offering explanations (293)
    • Judge rejects 55% penalty reduction and places vacated citations on public record (295)
  • Review Commission Orders and ALJ Decisions (297)

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Recent Posts

MSHA Citations and Orders ‘Hearsay,’ Not Admissible Say Blankenship’s Attorneys

A day after paperwork was filed with the court allowing two attorneys from the DOL Solicitor’s office assist the U.S. Attorney’s office in the criminal prosecution of Donald Blankenship, the former Massey CEO’s attorneys said MSHA citations and orders should not be admitted into evidence because the information is “hearsay.”

Admission of the citations in lieu of the MSHA inspector’s testimony violates the rules of evidence for a criminal trial, according to the court filing (See UBB Attic; Doc_399). However, it appears that if the citations and orders are admitted, then the MSHA inspectors must testify about each citation and order, according to the defense attorneys.

What isn’t clear is if the non-prosecution agreement that U.S. Attorney Booth Goodwin reached with Alpha Natural Resources Dec. 6, 2011, may come back to haunt the U.S. government in their goal of prosecuting the former Massey Energy CEO for alleged conspiracy and Mine Act charges.

The agreement stated that the MSHA citations and orders “may not be considered an adjudication on the merits of any citation or order…. it is the parties’ intent that this correspondence may not be referenced or introduced as evidence,” which included all of the citations and orders issued at the UBB mine.

Further, MSHA and the U.S. Attorney agreed that it would not consider the settlement, or the payment in full of the citations and orders, an admission of a violation by any legacy Massey company… any of their affiliates, or any individual of any laws, including local, state or federal statutes (See UBB Attic; “Alpha_Settlement_Agreement”).

It’s not the first time that MSHA evidence was excluded from a trial. In 1996, evidence of fatalities from the Pyro mine explosion in which 10 miners were killed was held to be inadmissible at the criminal trial of four mine officials charged with criminal violations of the Mine Act arising from the explosion. “[E]vidence that there were fatalities and the number of fatalities is not relevant to any issue in [the] case.” The government, the parties, the attorneys, and the witnesses were prohibited from making any reference to the fact that fatalities occurred in the explosion. However, the fact that the explosion occurred is relevant because “an explosion is one of the dangers targeted by many of the mandatory health and safety standards the defendants are alleged to have violated.” The “probative value” of evidence of the explosion is not outweighed by the danger of “unfair prejudice” to the defendants.” The government was permitted to refer to the fact that an explosion occurred “with resulting injuries to miners.” U.S. v. David Steele, No. 4:93-CR-10-M (D.C. W.Ky. Jan. 11, 1996), 3 MSHN 42 (Jan. 26, 1996).

Meanwhile, the Justice Dept just issued a memo that would curtail the kind of non-prosecution agreement reached between the U.S. Attorney’s Office and Alpha. The new memo, DOJ_memo_individ_account_corporate_wrongdoing, is clear in its intention that DOL should not settle criminal matters with a corporation “without a clear plan to resolve related individual cases.” In order for a company to receive any consideration for cooperation, companies “must completely disclose to the Department all relevant facts about individual misconduct. Companies cannot pick and choose what facts to disclose. That is, to be eligible for any credit for cooperation, the company must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the Department all facts relating to that misconduct. If a company seeking cooperation credit declines to learn of such facts or to provide the Department with complete factual information about individual wrongdoers, its cooperation will not be considered a mitigating factor.”

  1. Conspiracy charges in Blankenship case Comments Off on Conspiracy charges in Blankenship case
  2. Who Owes What: A comprehensive list of delinquent MSHA penalties Comments Off on Who Owes What: A comprehensive list of delinquent MSHA penalties
  3. UBB Attic Comments Off on UBB Attic
  4. A Poisoned Gold Miner’s Case Comments Off on A Poisoned Gold Miner’s Case
  5. Black Lung Legislation Introduced Comments Off on Black Lung Legislation Introduced
  6. Murray Mines Sue UMWA Comments Off on Murray Mines Sue UMWA
  7. Vol. 22, No. 12 & 13 Comments Off on Vol. 22, No. 12 & 13
  8. Vol. 22, No. 6 & 7 Comments Off on Vol. 22, No. 6 & 7
  9. Senate and House Bills to Hold Delinquent Operators Accountable Comments Off on Senate and House Bills to Hold Delinquent Operators Accountable