Dickenson-Russell Coal Company, LLC

Plain-English summary

The Commission had accepted interlocutory review of whether the Secretary could remove an S&S designation in settlement without Commission approval. Dickenson-Russell Coal then paid the penalty and withdrew its contest of the citation. The Commission held that immediate review would no longer advance the proceeding. It vacated its interlocutory-review order and remanded for the judge to determine whether the case was moot.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was vacated and the case was remanded.
• Key point: Payment and withdrawal of the underlying contest eliminated the need for immediate review of the settlement question.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                           

March 27, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

DICKENSON-RUSSELL COAL                

COMPANY, LLC 

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Docket No. VA 2012-397

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. On February 21, 2013, Administrative Law Judge Thomas P. McCarthy issued an
Order Rejecting Amended Settlement Motion and Order for Certification of Interlocutory
Review. Unpublished Order at 8 (Feb. 21, 2013). The proposed settlement at issue involved
Citation No. 8190957. Id. at 1.

On March 4, 2013, the Commission issued an order pursuant to Commission Procedural
Rule 76(a), 29 C.F.R. § 2700.76(a), directing interlocutory review on the question of whether the
Secretary of Labor can remove a “significant and substantial” designation from a citation without
leave of the Commission in settlement of a proposed assessment of civil penalty that has been
contested. The Commission further ordered briefing by the parties.

On March 11, 2013, Dickenson-Russell Coal Company, LLC (“Dickenson-Russell”) filed
with the Commission a Notice of Withdrawal of Contest. In the notice, Dickenson-Russell states
that it has paid the civil penalty associated with Citation No. 8190957, and that it withdraws its
notice of contest of the citation. 

Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion
of the Commission, and that the Commission may grant interlocutory review upon a
determination that the Judge’s interlocutory ruling involves a controlling question of law and
immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a). 

Upon consideration of the matter, we have determined that, given the operator’s payment
of penalty and its filing of a notice of withdrawal of its contest, the criteria for interlocutory
review are no longer satisfied. We hereby vacate our order directing interlocutory review and
remand the case to Judge McCarthy for further proceedings under the Mine Act, including a
determination of whether this proceeding is moot.  

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Cameron S. Bell, Esq.

Penn, Stuart & Eskridge

P.O. Box 2288

Abingdon, VA 24212

A. Scott Hecker, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Douglas N. White, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Robert S. Wilson, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Thomas P. McCarthy

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004