Ezel / Agency Decisions / cent-86-59-r-alj
FMSHRC ALJ decision Docket CENT 86-59-R, CENT 86-60-R, CENT 86-61-R, CENT 86-40 Decided May 29, 1986 Procedural Judge George A. Koutras

Austin Power, Incorporated

Austin Power, Incorporated (FMSHRC CENT 86-59-R and related dockets): Motion to amend citation granted

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This order from 1986 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1986
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Interlocutory ALJ order, not Commission precedent
This order granted the Secretary's motion to amend a citation while the underlying contest continued. It did not dispose of the case or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary sought to amend Citation No. 2339413 to allege, in the alternative, violations of 30 C.F.R. § 77.205(e) or § 77.404(a). Austin Power objected, arguing that the request was untimely and would prejudice its trial preparation. Judge George A. Koutras found that the factual basis for the citation was already stated on its face and that Austin Power could cross-examine witnesses and present rebuttal evidence at the hearing. He denied Austin Power's opposition and granted the motion to amend.

Decision snapshot

  • Cited standards: 30 C.F.R. § 77.205(e) and 30 C.F.R. § 77.404(a)
  • Outcome: The Secretary was allowed to amend Citation No. 2339413 to plead alternative violations.
  • Key point: A citation may be amended when the opposing party has notice of the factual basis and a full opportunity to respond at hearing.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. AUSTIN POWER
DDATE:
19860529
TTEXT:

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~881

       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-40
PETITIONER A.C. No. 41-01192-03503

     v.                             Big Brown Strip

AUSTIN POWER, INCORPORATED,
RESPONDENT

AUSTIN POWER, INCORPORATED, CONTEST PROCEEDINGS
CONTESTANT Docket No. CENT 86-59-R
Citation No. 2339411; 8/20/85

     v.                             Docket No. CENT 86-60-R
                                    Citation No. 2339412; 8/20/85

SECRETARY OF LABOR, Docket No. CENT 86-61-R
MINE SAFETY AND HEALTH Citation No. 2339413; 8/20/85
ADMINISTRATION (MSHA),
RESPONDENT Docket No. CENT 86-61-R
Big Brown Strip

                            ORDER

 By motion filed May 13, 1986, the Secretary seeks to amend

Citation No. 2339413, to allege in the alternative either a
violation of 30 C.F.R. 77.205(e) or a violation of 30 C.F.R.
77.404(a). Austin Power opposes the motion on the ground that the
Secretary's attempt to modify the citation is untimely and will
prejudice Austin Power's trial preparation.

 Administrative pleadings may be liberally construed and

easily amended, National Realty and Construction Company v.
Occupational Safety and Health Review Commission 489 F.2d 1257
(D.C.Cir.1973), Secretary of Labor v. United States Steel
Corporation, 6 FMSHRC 1908, 1916 (August 1984). Further, I am not
convinced that Austin Power has been prejudiced by the proposed
amendment. The factual basis for the issuance of the citation is
the "condition or practice" stated by the inspector

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~882
on the face of the citation served on Austin Power, and MSHA has
the burden of proof. Austin Power will have a full opportunity to
cross-examine MSHA's witnesses at the hearing and is free to
present its evidence to rebut the charges.

 Austin Power's opposition to the motion IS DENIED, and the

Secretary's motion to amend the citation to charge alternative
alleged violations IS GRANTED.

                      George A. Koutras
                      Administrative Law Judge

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