The Pittsburg & Midway Coal Mining Company (ALJ decision, September 5, 1980)

Plain-English summary

Nine civil penalty dockets involving Pittsburg & Midway Coal Mining Company returned to Judge George A. Koutras after a Commission remand. The judge read the remand as giving the Secretary a chance to decide whom to charge in cases involving independent contractors. He found that the Secretary's response had not made that decision and instead sought action by the company or the contractors. He dismissed all nine dockets without prejudice, allowing the Secretary to bring new proceedings against parties he believed should be charged. The order assessed no penalty.

Decision snapshot

• Cited standards: None specified in this dismissal order.
• Outcome: Nine dockets dismissed without prejudice; no penalty assessed.
• Key point: The judge dismissed the dockets without prejudice, leaving the Secretary free to bring new proceedings against parties he believed should be charged.

Full text (FMSHRC public release)

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
(703) 756-6210/11/12

5 SEP 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

THE PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent

Civil Penalty Proceedings

Docket No. BARB 79-307-P
A.O. No. 15-11348-03002

Docket No. BARB 79-285-P
A.O. No. 15-11348-03001

Docket No. PIKE 79-129-P
A.O. No. 11348-03004 F

Docket No. KENT 79-74
A.O. No. 15-11348-03006

Docket No. KENT 79-180
A.O. No. 15-13348-03007

Docket No. KENT 79-367
A.O. No. 15-13348-03009

Docket No. KENT 79-269
A.O. No. 15-11348-03008

Docket No. KENT 79-99
A.O. No. 15-11348-03003

Pleasant Hill Surface Mine

Docket No. KENT 79-229
A.O. No. 15-02021-03005

Colonial Strip Mine

DECISIONS

In its Decision of August 4, 1980, the Commission remanded the captioned "independent contractor" cases to me for the limited purpose of affording the Secretary an opportunity to consider several enforcement options available to him as a result of my decisions of February 8, 1980,

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affirming his decision to proceed against the respondent mine owner-operator rather than against a number of independent contractors. As I interpret the Commission's remand, the Secretary had thirty (30) days to make up his mind, and to inform me as to any enforcement decision in this regard. On September 4, 1980, the Secretary filed a response to the Commission's decision on-remand and a copy is attached and incorporated herein by reference.

In view of the fact that the Secretary indicated to the Commission during the appeal of these cases that he now desires to achieve "fair enforcement" of the Act in independent contractor cases, and in view of Commissioner Jestrab's observations in his dissent concerning the Secretary's concession that the respondent is not the operator, it seems to me that it is incumbent on the Secretary to decide how he now wishes to proceed in these cases, and that is precisely how I interpret the Commission's remand. However, rather than doing this, the Secretary is now attempting to shift the burden to the respondent and to the contractors to take the initiative for the substitution or parties, and in the alternative he suggests that the case be reopened to permit the respondent to implead the contractor as a third party. The Secretary's apparent refusal to comply with the Commission's decision that he take the enforcement initiative in these cases is apparently based on some mysterious policy question which is characterized by the Secretary at pg. 2 of his remand statement as something not in his interest.

It seems obvious to me that the Secretary has not complied with the Commission's decision on remand. Accordingly, in order to give the Secretary a fresh opportunity to apply his new enforcement policy, and in keeping with his avowed intent to insure that "fair enforcement of the Act" will be followed in contractor cases, IT IS ORDERED that all of these dockets be DISMISSED, without prejudice to the Secretary instituting new proceedings against any and all parties who he believes should be pursued.

George A. Koutras
Administrative Law Judge

Attachment

Distribution:

Marvin Tincher, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)

George M. Paulson, Jr,, Esq., The Gulf Companies, Law Dept., 1720 S.
Bellaire St., Denver, CO 80222 (Certified Mail)