Green River Coal Company

Plain-English summary

Green River Coal Company faced a civil penalty proceeding concerning a section 104(a) significant-and-substantial citation for an alleged violation of the safeguard provisions in 30 C.F.R. § 75.1403(5)(g). The Commission had vacated the ALJ's earlier decision because it was issued before the parties' posthearing briefs and remanded the case for further consideration. After reviewing those briefs, Judge George A. Koutras found no basis to change the prior dispositive findings and reaffirmed them, including the civil penalty assessments for the citations that had been affirmed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1403(5)(g)
• Outcome: The prior findings and conclusions concerning the contested citations were reaffirmed on remand.
• Key point: The ALJ reconsidered the posthearing briefs required by the Commission's remand and reached the same dispositive result.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GREEN RIVER COAL
DDATE:
19890605
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 88-152
PETITIONER A.C. No. 15-13469-03658

         v.                            Green River Coal No. 9 Mine

GREEN RIVER COAL COMPANY,
RESPONDENT

                           DECISION ON REMAND

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
B. R. Paxton, Esq., Paxton & Kusch, Central City,
Kentucky, for the Respondent.

Before: Judge Koutras

                         Statement of the Case

 On April 24, 1989, I issued a decision in this matter, 11

FMSHRC 685 (April 1989). However, through an oversight, the
decision was issued before the receipt of the posthearing briefs
subsequently filed by the parties. As a result of the premature
issuance of the decision, MSHA filed a petition for discretionary
review with the Commission claiming that a prejudicial error was
committed when the decision was issued prior to the May 3, 1989,
date set by me for the filing of briefs by the parties.

 On May 10, 1989, the Commission granted MSHA's petition for

review, vacated my decision, and remanded the case to me for
further consideration in light of the posthearing briefs filed by
the parties.

                               Discussion

 MSHA only takes issue with my prior decision concerning a

section 104(A) "S&S" Citation No. 3227259, March 21, 1988, which
cites an alleged violation of the safeguard provisions of
mandatory safety standard 30 C.F.R. 75.1403(5)(g). The
posthearing

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briefs filed by the parties address this citation, and the
interpretation and application of two prior safeguarding
decisions in Secretary v. Southern Ohio Coal Company, 7 FMSHRC
509 (April 1985), and Secretary v. Mid-Continent Resources, Inc.,
7 FMSHRC 1457 (September 1985).

 I have now reviewed and considered the written posthearing

briefs filed by the parties. The issue raised in the briefs is
the same as that raised by the respondent during oral arguments
in the course of the hearing, and it is the same issue discussed
and disposed of in my prior decision at 11 FMSHRC 696 through
703. Under the circumstances, I find no basis for changing my
prior dispositive findings and conclusions with respect to the
citation, and my prior decision in this regard is herein
incorporated by reference and REAFFIRMED.

                             ORDER

 In view of the foregoing, IT IS ORDERED THAT:

 My prior findings and conclusions with respect to the
 contested citations in this proceeding, including the
 civil penalty assessments for the citations which have
 been affirmed, are incorporated by reference, and
 REAFFIRMED as my dispositive decision in this matter.
 See: 11 FMSHRC 704-705.

                         George A. Koutras
                         Administrative Law Judge