If there is any consolation for operators, it comes in the form of two decisions issued, respectively, by the Sixth and Seventh Circuit Court of Appeals [Vulcan Construction Materials, L.P., v. FMSHRC, Docket No. 11-2860 (7th Cir. Oct. 25, 2012); North Fork Coal Corp. v. Gray, Docket Nos. 11-3398/3684 (6th Cir. Aug. 14, 2012)]. Both courts determined that a miner’s right to temporary reinstatement ends when the Secretary decides not to pursue the case further. Previously, the Commission had held that a temporary reinstatement order could not be dissolved, even if the Secretary was no longer involved in the case and the miner continued to pursue the case independently.

These decisions may be cold comfort, however, for an operator that finds itself facing temporary reinstatement of a miner it knows was terminated for legitimate and non-discriminatory reasons. While the vast majority of operators actively support miner involvement in promoting a safer work environment, the current regulatory environment lacks any sort of effective mechanism to weed out meritless claims against innocent operators in the early stages of investigation and litigation. Consequently, MSHA’s increased emphasis on seeking temporary reinstatement may leave a responsible, safety-conscious operator with a bad taste in its mouth and a large hole in its pocketbook.

Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, where she works with the firm’s Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or via email at mwitter@jacksonkelly.com.