Pennyrile Energy, LLC v. Secretary of Labor (ALJ decision, July 27, 2016)

Plain-English summary

MSHA issued Order No. 9048420 to Pennyrile Energy at the Riveredge Mine in June 2016, alleging that an underground miner working on the surface area of the mine lacked the training required by 30 C.F.R. § 48.25. Pennyrile contested the order and asked for an expedited hearing, arguing the order was legally wrong and that the same issue would keep generating citations until a judge resolved it. Judge William S. Steele explained that the Commission's procedural rule on expedited hearings, 29 C.F.R. § 2700.52, does not say when such a motion should be granted, so judges use informed discretion and set a hearing within a reasonable time. Under the case law he applied, an expedited hearing requires extraordinary or unique circumstances causing continuing harm or hardship. He found none here: providing miner training is not a hardship, and an operator's disagreement with how MSHA reads a standard is not a reason to jump the queue. The motion was denied and the contest proceeded on the normal schedule.

Decision snapshot

• Cited standard: 30 C.F.R. § 48.25
• Outcome: Motion for an expedited hearing denied; the notice of contest continued on the ordinary schedule.
• Key point: Expedited hearings require extraordinary circumstances causing continuing harm, not a strong disagreement with MSHA's interpretation of a standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

PENNYRILE
ENERGY, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Respondent.

CONTEST
PROCEEDING

Docket
No. KENT 2016-432-R

Order
No. 9048420; 06/15/2016

Mine:
Riveredge Mine

Mine
ID: 15-19424

ORDER DENYING
MOTION FOR EXPEDITED HEARING

Before:
Judge Steele

This
case is before me upon a notice of contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Order No. 9048420 was issued to Contestant on June 15, 2016, for an alleged violation of 30 C.F.R. § 48.25. On July 15, 2016, Contestant filed a Notice of Contest and a Motion for Expedited Hearing. The Secretary filed the Secretary’s Answer to Notice of Contest on July 21, 2016. Contestant filed Pennyrile Energy’s Reply to the Secretary’s Opposition to Motion for Expedited Hearing on July 25, 2016.

The
Commission’s procedural rule concerning expedited hearings does not address when a motion for an expedited hearing should be granted or denied. 29 C.F.R. § 2700.52. Therefore, Administrative Law Judges retain “informed discretion” in determining whether an expedited hearing is proper, and they must schedule a hearing within a reasonable time.  Secretary of Labor (MSHA) v. Wyoming Fuel Co., 14 FMSHRC 1282 (Aug. 28 1992). An expedited hearing is appropriate when there are “extraordinary or unique circumstances resulting in continuing harm or hardship.” Southwest Portland Cement Co., 16 FMSHRC 2187 (Oct. 4, 1994) (ALJ); Mountain Cement Co., 23 FMSHRC 694 (June 25, 2001)(ALJ); Consolidation Coal Company, 16 FMSHRC 495 (February 1994) (ALJ).

Contestant argues that an expedited
hearing is necessary because the order at issue is wrong as a matter of law and “capable of repetition.” Mot. For Expedited Hr’g at 1-2. Specifically, Order No. 9048420 was issued because an underground miner, who was working on the surface area of a mine, did not have the training required by Section 115 of the Mine Act and 30 C.F.R. § 48.25. Notice of Contest Ex. A.  Contestant argues that without a hearing to determine if underground miners are required to obtain this training, miners will continue to get cited, and thus, an expedited hearing is necessary. Mot. For Expedited Hr’g at 1-2.

Contestant fails to demonstrate
extraordinary or unique circumstances that result in a continuing harm or hardship. Miner training is not a hardship that necessitates an expedited hearing. Additionally, the operator’s disagreement as to MSHA’s regulatory interpretation of 30 C.F.R. § 48.25 does not warrant an expedited hearing.

Accordingly, Contestant’s Motion for
Expedited Hearing is DENIED.

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution:

Mark E. Heath,
Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard, East, P.O. Box 273, Charleston, WV 25321-0273

Mary Sue Taylor,
Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219

/ktw