MSHA says Armstrong Coal complaint should be dismissed

The U.S. Mine Safety and Health Administration wants a Sept. 4 lawsuit filed against it and some of its officials dismissed, claiming that plaintiff Armstrong Coal filed the action in the wrong venue.

Armstrong Coal filed the lawsuit in the U.S. District Court for the Western District of Kentucky, contending that MSHA has threatened to shut down the Parkway deep mine in western Kentucky because a nearby but unrelated equipment fabrication shop is listed under same MSHA ID number as the mine. MSHA has cited the shop for unsafe conditions, which Armstrong Coal also disputes.

“This case results from MSHA’s decision to inspect a building – a Fabricator Shop (‘Fabricator Shop’ or ‘repair shop’) – on the site of the Plaintiffs’ Parkway Coal Mine in August of 2012,” said MSHA’s Oct. 26 response to the lawsuit. “Plaintiffs would like to challenge that decision, but such a challenge has no legal viability in this Court, and certainly cannot serve as the predicate for Plaintiffs’ motion for temporary and preliminary injunctive relief. This Court first lacks jurisdiction over this lawsuit under Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994). In Thunder Basin, the Supreme Court held that operator challenges to MSHA’s enforcement of the Mine Act are not within federal district court subject matter jurisdiction, because the Mine Act created an elaborate review scheme that channels pre- and post-enforcement challenges to the legality of MSHA’s conduct through an administrative agency – a review commission separate from MSHA itself, no less – and the appropriate federal court of appeals.”

The Armstrong complaint, which ultimately attempts to have this court declare that the Fabricator Shop is outside of the jurisdiction of MSHA, is a suit well within the agency’s expertise and should be pursued within the Mine Act’s administrative scheme, the agency added.

“Indeed, one would be hard-pressed to find a better forum to determine what a ‘mine’ is than the administrative commission provided for by the Mine Act,” MSHA added. “Plainly aware of the pitfalls of Thunder Basin – the Plaintiffs even went out of their way to allege the inapplicability of Thunder Basin in the jurisdictional section of their Complaint – they frame their Complaint as a broad constitutional challenge to the procedures for evaluating the scope of MSHA’s jurisdiction. Notwithstanding the Plaintiffs’ attempts at creative pleading, Thunder Basin and its progeny teach that even facial constitutional challenges to the Mine Act are precluded from being heard by this Court. However Plaintiffs elect to phrase their challenge to MSHA’s inspection of the Fabricator Shop, this case does not belong in federal district court. Alternatively, even if the Court concludes that the Complaint contains any claims that escape the reach of Thunder Basin, the Complaint should nonetheless be dismissed for failure to state a claim upon which relief may be granted. The Plaintiffs’ underlying constitutional claims border on the frivolous and ultimately seek to have this Court rewrite mining laws that have been in existence for over three decades.”

MSHA continued: “The Plaintiffs have unilaterally declared the Fabricator Shop to be outside MSHA’s jurisdiction and assume that MSHA must respect the Plaintiffs’ assertions or provide the Plaintiffs with a full hearing before any inspection of a mine can occur. However, the Plaintiffs, as mine operators, have no right to set areas of their mine off limits from inspectors, and ample Supreme Court precedent has held that the Mine Act provides sufficient procedures to protect against any overreach by the agency. The Plaintiffs’ remaining claims arguing that the Administrative Procedure Act has been violated and that the Defendants have acted ultra vires are similarly legally insufficient. Moreover, Plaintiffs’ motion for a preliminary injunction must be denied because this case is unlikely to succeed on the merits, because the Plaintiffs waited far too long in seeking injunctive relief, and because they have not shown that they face any irreparable harm in the immediate future. In short, this Court should dismiss the Plaintiffs’ Complaint and deny the Plaintiffs’ motion for preliminary injunctive relief as moot or, at a minimum, deny Plaintiffs’ motion because they fail to meet the rigorous standards that must be met before any such relief can be granted.”

MSHA says a more recent request for court action should also be rejected

On Oct. 5, more than a month after the filing of their complaint, Armstrong filed a motion for a temporary restraining order and a preliminary injunction due to an MSHA inspection conducted right after the lawsuit was filed that again might have resulted in a mine shutdown.

“Specifically, Plaintiffs say that on September 7, 2012, three days following the filing of the Complaint and nearly a month before they filed their emergency motion, Defendant [Wendell] Crick, a MSHA inspector, visited the Parkway Mine to determine whether the Plaintiffs had ignored the abatement orders MSHA had issued on August 28, 2012. After the Plaintiffs finally allowed Mr. Crick to enter the Fabricator Shop, the MSHA inspector discovered that of the twenty-four citations issued on August 28, 2012, twenty remained unabated. Accordingly, Mr. Crick issued twenty orders pursuant to Section 104(b) of the Mine Act that required the Plaintiffs to withdraw from the Fabricator Shop.”

MSHA continued: “The Plaintiffs now contend that this Court must immediately issue a ‘TRO and preliminary injunction’ to stop the ‘Defendants from continuing their pattern of unlawfully asserting jurisdiction over [the] Fabricator Shop.’ Without citing any reason to suspect there will be future immediate assertions of jurisdiction over the Fabricator Shop or continued issuance of citations against Armstrong for conditions found in the repair shop, the Plaintiffs ominously contend that they will ‘continue to suffer further immediate and irreparable injury’ because of the Defendants’ refusal to take the Plaintiffs at their word that the Fabricator Shop is not currently being used. Defendants now demonstrate that this entire case should be dismissed as a matter of law, and that, at a minimum, their request for temporary and injunctive relief should be denied.”

Armstrong Coal, which has been planning to go public in an IPO under a new parent company, Armstrong Energy, is a major producer with several coal mines in western Kentucky. MSHA data shows the Parkway deep mine produced 1.1 million tons in the first nine months of this year and over 1.4 million tons in all of 2011.

Armstrong’s coal customers include Louisville Gas and Electric, Kentucky Utilities and the Tennessee Valley Authority.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.