Emergency Response Plan Dispute Proceedings

The Mine Improvement and New Emergency Response Act of 2006 (the “MINER Act”), Pub. L. 109-236, 120 Stat. 493 (2006), which was signed by President George W. Bush on June 15, 2006, amends the Federal Mine Safety and Health Act of 1977, and requires in part that each underground coal mine operator develop and adopt a written emergency response plan (“ERP”) no later than 60 days after enactment of the MINER Act. Thereafter, each ERP is subject to periodic review by the Secretary at intervals not to exceed 6 months. The MINER Act also requires the Commission to expedite resolution of disputes over plan contents arising between operators and the Secretary of Labor.

ERP dispute proceedings are cases brought before the Commission when an operator issued a citation issued by the Secretary because the operator has not agreed to include a certain provision in its ERP. Within 2 business days after the Secretary has issued the citation to the operator, the Secretary must send to the Commission and operator a “referral,” which triggers a series of filings with the Judge, culminating in a decision that must issue 30 days after the referral.

If a party wishes to challenge the Judge’s order in an ERP dispute proceeding, including the Judge’s order granting or denying a stay, it may file a petition for review with the Review Commission within 30 days after issuance of the decision or order.

The following chart summarizes the procedures when an emergency response plan dispute is filed under Rule 24. All references to Commission rules are to 29 C.F.R. Part 2700.

EMERGENCY RESPONSE PLAN DISPUTE PROCEEDINGS

*The filing of all documents with the Commission under Rule 24 is effective upon receipt. 

1. A referral to the Commission by the Secretary must be filed within 2 business days of the issuance of a citation arising from a dispute between the Secretary and an operator regarding the content of the operator’s emergency response plan.
   
   
2. The operator must file a short and plain statement of its position within 5 calendar days of the filing of the referral.
   
   
3. Any party may request a hearing within 5 calendar days of the referral; the Judge may order a hearing within 10 calendar days of the referral.
   
   
4. The parties must submit all relevant materials regarding the dispute to the Judge within 15 calendar days of the referral
   
   
5. If one is ordered, a hearing must be held within 15 calendar days of the referral.
   
   
6. The Judge must issue a decision within 15 calendar days following submission of materials and testimony.
   
   
7. (A). An operator may seek a stay of the inclusion of the disputed provision in the emergency response plan from the Judge within 2 business days following service of the decision.
   
   
7. (B). The Secretary may file a response to the operator’s request for a stay within 2 business days following service of the operator’s request for a stay.
   
   
7. (C). The Judge shall issue an order granting or denying the request for a stay within 2 business days after filing of the Secretary’s response.