Since November 2007, the company maintained the 0.4 citation per hour quota “had resulted and will continue to result in baseless citations being issued against AmCoal.” AmCoal operates the New Era and New Future underground mines near Galatia in Saline County, Ill. Together, the mines produced more than 6.3 million tons of coal in 2010 and are among the largest mines in the Illinois Basin.    

Judge Michael Reagan of the U.S. District Court for the Southern District of Illinois dismissed the original complaint in February 2010. But the judge also gave AmCoal “one last chance” to attempt to make its case against MSHA. Shortly thereafter, the company filed an amended complaint with the court.

In the original complaint, AmCoal contended the purported quota violated due process by forcing inspectors to write baseless violations, and, as a result, went “patently against” the Federal Coal Mine Health and Safety Act of 1977. The amended complaint alleged a due process violation. More specifically, AmCoal claimed the quota directive “results in citations not based in facts and evidence,” as required by the law, “which in turn may result in the company going out of business as a result of shutdowns” pursuant to the citations and/or “for not abating a violation, and/or due to ‘unwarrantable failures’ to comply with mandatory health or safety standards.”

AmCoal also alleged in the amended complaint that quota “is de facto rulemaking, substantially affecting the rights of broad classes of unspecified individuals,” and therefore a “notice and comment” is required under the law.

A third and final count in the amended complaint alleged the quota is an “ultra vires” action by MSHA, which is Latin for beyond the scope of the agency’s statutory powers.

Reagan, in a ruling this spring, dismissed all three counts “with prejudice,” meaning they cannot be re-filed by the company. While there is no dispute AmCoal has a property interest where the company is required to abate safety citations, especially if the shutdown of a mine is concerned, the judge concluded the company “has not raised a substantive due process challenge to the quota, so the court will only observe that there is no reason to assume that baseless citations must be issued in order to meet the alleged quota. Coming full circle, it must again be stressed that the possibility of administrative error exists in any regulatory program, and due process does not require judicial inquiry before discretion can be exercised.”

Reagan went on to state the quota described in AmCoal’s amended complaint is “not inconsistent with the requirement” in the Mine Act that citations only be issued upon inspection or investigation and the belief that a violation had occurred. “There is no reason to assume that baseless citations must be issued in order to meet the quota.” Therefore, he said, “the quota described in the amended complaint is not subject to the notice-and-comment requirement” of the Act.

Finally, the judge noted the Act requires the issuance of a citation by MSHA when, after inspection or investigation, it is believed “that a violation of the chapter or promulgated safety standard exists.” A “large quota is not inconsistent with this statute,” Reagan ruled. “There is no patent inconsistency between the statute and the quota, i.e., one appearing on the face of the quota; rather, there is a possible latent inconsistency that appears only after the quota is applied. MSHA has the power to issue a quota directive to its own employees. Any latent inconsistencies would not render the quota ultra vires.”

Both Murray Energy, the parent company of AmCoal, and MSHA spokesperson Amy Louviere declined to comment on the ruling.