United States Steel Corporation (Commission decision, January 9, 1981)

Plain-English summary

United States Steel challenged a withdrawal order issued under the 1969 Coal Act. After an earlier remand, the judge upheld the order because the operator had not proved that the mine received a complete inspection between two enforcement orders. The Commission held that the mine safety agency bore the initial burden of showing there had been no intervening clean inspection. It found that the agency had not made that showing. The Commission reversed the judge and vacated the withdrawal order; this decision assessed no penalty.

Decision snapshot

• Cited standard: Section 104(c)(2) of the Federal Mine Health and Safety Act of 1969.
• Outcome: Withdrawal order vacated; no penalty assessed in this decision.
• Key point: The agency had to make an initial showing that no intervening clean inspection occurred before the withdrawal order.

Full text (FMSHRC public release)

CCASE:
MSHA V. U.S. STEEL
DDATE:
19810109
TTEXT:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION WASHINGTON, D.C.
January 9, 1981

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. HOPE 75-708

UNITED STATES STEEL CORPORATION
IBMA No. 77-40

DECISION

This proceeding was initiated when United States Steel Corporation filed an application for review of an order of withdrawal issued pursuant to section 104(c)(2) of the Federal Mine Health and Safety Act of 1969. After hearing, the administrative law judge affirmed the order and dismissed the operator's application for review. U.S. Steel appealed to the Board of Mine Operations Appeals (BMOA). BMOA acted on that appeal on March 15, 1977, remanding the case to the administrative law judge for a specific finding of fact to be made as to whether there had been a complete inspection of the mine subsequent to the issuance of the section 104(c)(1) order, and prior to the inspection which precipitated the issuance of the withdrawal order under appeal. The administrative law judge on remand found that the applicant (operator) had not established by a preponderance of the evidence that there had been a complete inspection.

U. S. Steel again appealed to BMOA. That appeal was pending before the Board as of March 8, 1978, and is therefore before the Commission for disposition. 30 U.S.C.A. 961 (1978).

In CF&I Steel Corporation, Docket No. DENV 76-46 (December 2, 1980), we held that "a prerequisite to the issuance of an order of withdrawal under section 104(c)(2) of the 1969 Coal Act was the absence of an intervening 'clean' inspection of the entire mine, and that it was MESA's obligation to present a prima facie case of that fact to sustain the order." In this case, the judge erred in not requiring MESA to present a prima facie case on the issue of an intervening "clean" inspection. We have reviewed the record and find that MESA did not establish a prima facie case of the absence of such an inspection.
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Therefore, in accordance with our decision in CF&I Steel, the decision of the judge is reversed and the order of withdrawal is vacated.

Richard V. Backley, Chairman

Frank F. Jestrab, Commissioner

A. E. Lawson, Commissioner

Marian Pearlman Nease, Commissioner
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Distribution

Billy M. Tennant, Esq.
U.S. Steel Corporation
600 Grant Street
Pittsburgh, PA 15230

Cynthia Attwood, Esq.
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, lOth Floor
Skyline Center #2
Falls Church, Virginia 22041