Associated Electric Corporation, Inc. (Commission decision, September 21, 1999)

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