Associated Electric Corporation, Inc.

Plain-English summary

Associated Electric and MSHA jointly asked the Commission to dismiss a petition for discretionary review as moot. MSHA had vacated the citation and order after the Eighth Circuit held that the area involved was not a mine under section 3(h)(1) of the Mine Act. The Commission granted the motion, vacated its direction for review, and dismissed Associated Electric's appeal. Each party was left to bear its own costs, fees, and expenses.

Decision snapshot

• Cited authority: 30 U.S.C. § 802(h)(i)
• Outcome: The Commission vacated its direction for review and dismissed the appeal as moot.
• Key point: When MSHA vacates the underlying citation after controlling appellate guidance, the Commission may dismiss the pending review as moot.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                   September 21, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. CENT 97-164-R
: CENT 97-165-R
ASSOCIATED ELECTRIC :
COOPERATIVE, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                          ORDER

BY THE COMMISSION:

 Pending before the Commission is a joint motion filed by

Associated Electric Cooperative, Inc. ("Associated Electric")
and the Department of Labor's Mine Safety and Health
Administration ("MSHA") to dismiss as moot the petition for
discretionary review filed in this matter. The parties argue
that the petition is moot because, on August 30, 1999, MSHA
issued a notice vacating the citation and order at issue in
the case. Jt. Mot. at 1. The parties explain that MSHA
issued the notice because, in Herman v. Associated Electric
Cooperative, Inc., 172 F.3d 1078 (8th Cir. 1999), the United
States Court of Appeals for the Eighth Circuit determined that
the area which is the subject of the citation and order in
question in this case is not a "mine" within the meaning of
section 3(h)(i) of the Mine Act, 30 U.S.C. § 802(h)(i). Id.
The parties further state that the Secretary does not intend
to appeal the decision of the Eighth Circuit. Id. at 1-2. The
Secretary and Associated Electric specify that each party will
bear its own costs, fees, and expenses in this case before the
Commission. Id. at 2.

 Upon consideration of the joint motion by the Secretary

and Associated Electric for voluntary dismissal, we grant the
parties' motion. Accordingly, the Commission's direction for
review in this matter is vacated and Associated Electric's
appeal is dismissed.

                     ____________________________________
                      Mary Lu Jordan, Chairman

                     ____________________________________
                      Marc Lincoln Marks, Commissioner

                     ____________________________________
                      James C. Riley, Commissioner

                     ____________________________________
                      Theodore F. Verheggen, Commissioner

                     ____________________________________
                      Robert H. Beatty, Jr., Commissioner

Distribution

Rodric A. Widger, Esq.
Andereck, Evans, Milne, Peace & Baumhoer
1111 South Glenstone Avenue
P.O. Box 4929
Springfield, MO 65808

W. Christian Schumann, Esq.
Stephen Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041