Excel Mining LLC

Plain-English summary

The International Chemical Workers Union Council asked to intervene in Excel Mining's Commission review of a silica-sampling dispute, or alternatively to participate as an amicus curiae. The Commission denied intervention because the union had not shown a direct enough interest or why amicus participation would be inadequate. It granted amicus participation and accepted the union's late-filed brief. The Commission also invited other interested participants to seek amicus status and tolled the response period.

Decision snapshot

• Cited statute: 30 U.S.C. § 842(f)
• Outcome: Intervention was denied, amicus participation was granted, and the late-filed brief was accepted.
• Key point: A prospective amicus must meet the procedural requirements for participation, but the Commission may accept a late brief in appropriate circumstances.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       March 16, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. KENT 99-171-R
: KENT 99-172-R
EXCEL MINING LLC : KENT 99-173-R

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                           ORDER

BY THE COMMISSION:

   Pursuant to Commission Procedural Rules 73 and 74, 29 C.F.R. §§ 2700.731 and

2700.74,2 the International Chemical Workers Union Council (“CWU”) has filed a motion to

   1
       Commission Procedural Rule 73 provides, in pertinent part, that a motion to intervene

shall set forth:

            (a) A legally protectible interest directly relating to the property or
            events that are the subject of the case on review; (b) A showing
            that the disposition of the proceeding may impair or impede his
            ability to protect that interest; (c) The reasons why the movant’s
            interest is not adequately represented by parties already involved in
            the proceeding; and (d) . . . [an explanation] why the movant’s
            participation as an amicus curiae would be inadequate.

29 C.F.R. § 2700.73.
2
Commission Procedural Rule 74 provides, in pertinent part:

            (a) After the Commission has directed a case for review, any
            person may move to participate as amicus curiae. . . . A motion for
            participation as amicus curiae shall set forth the interest of the

                                      22 FMSHRC 318

Page 2

intervene or, in the alternative, to participate as amicus curiae, together with its brief in support
of the Secretary of Labor’s request to reverse Administrative Law Judge Gary Melick’s decision
in the above-captioned proceedings. Upon consideration of the motion, we deny the CWU’s
motion to intervene, grant its motion to participate as amicus curiae, and accept the CWU’s
amicus brief.

    As grounds for its motion, the CWU states that it has been involved in Asarco, Inc., 20

FMSHRC 1001, 1004-08 (Sept. 1998), pet. for review docketed, No. 98-4234 (6th Cir. Oct. 16,
1998), at each stage of those proceedings, and that our decision in the instant matter may have an
impact upon its chances for success in Asarco. Mot. at 2. The CWU explains that its position in
the above-captioned matter is not represented by either party. Id. The CWU also states that,
since it concurrently submitted its brief regarding the proper interpretation of the applicable
section of the Mine Act, granting its request to intervene should not unduly delay these
proceedings or prejudice any party. Id. at 3. Finally, the CWU submits that it did not intervene
before the judge because it learned about these proceedings on January 26, 2000, 32 days after
the Commission had directed review of this matter. Id. at 2.

    Excel Mining LLC (“Excel”) opposes the CWU’s motion. Excel submits that the CWU’s

motion to intervene was filed out of time, and that the CWU has offered no reason that might
constitute “good cause” to excuse the late filing. Opp’n at 1. Excel maintains that the CWU
lacks the requisite interest in this matter, and that granting the CWU’s motion would prejudice
Excel because it would have to refute the CWU’s argument, which was not made before the
judge. Id. at 2-3. Excel also claims that the CWU’s motion to participate as amicus curiae
should be rejected because the CWU’s position does not support one of the parties to the case,
because the CWU has no direct interest in this case, and because Excel would be prejudiced in
that granting this motion would require an extension of time for Excel and the Secretary of Labor
to respond to the CWU’s arguments. Id. at 3-4.

    The procedure for intervention under Commission Procedural Rule 73 requires, inter alia,

that the moving party set forth a legally protectible interest directly relating to the case on review,
and explain why its participation as an amicus curiae would be inadequate. The issue in the
underlying proceeding is whether Section 202(f) of the Mine Act, 20 U.S.C. § 842(f), permits the
Department of Labor’s Mine Safety and Health Administration to measure silica-bearing dust in
coal mines using multiple samples taken over a single shift. 21 FMSHRC 1401 (Dec. 1999)
(ALJ). We have held that the legal basis for rejecting the use of single-shift sampling in coal

           movant and show that the granting of the motion will not unduly
           delay the proceeding or prejudice any party. . . . (b) The brief of an
           amicus curiae shall be filed within the initial briefing period (see
           § 2700.75(a)(1)) allotted to the party whose position the amicus
           curiae supports. . . .

29 C.F.R. § 2700.74.

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Page 3

mines does not apply to metal/non-metal mines. Asarco, Inc., 17 FMSHRC 1, 5 (Jan. 1995).
Therefore, under Commission precedent, the holding in the underlying matter here will not have
a direct effect on the outcome of the Asarco matter currently pending before the Sixth Circuit,
which involves single-shift sampling in a metal/non-metal mine. Asarco, 20 FMSHRC at 1002.
Moreover, the CWU has made no showing that it represents any miners in the coal industry.
Thus, the CWU’s stated interest in enhancing its chances for success in Asarco is insufficiently
direct to satisfy the requirements of Rule 73(a). Furthermore, the CWU has made no showing
why its participation in this matter as amicus curiae would be inadequate. Accordingly, we deny
the CWU’s motion to intervene.3

    The CWU’s alternative motion to participate as amicus curiae raises a timeliness issue.

We recently amended Rule 74 to clarify that an amicus brief is due “within the initial briefing
period (see § 2700.75(a)(1)) allotted to the party whose position the amicus curiae supports.” 29
C.F.R. § 2700.74. Prior to the November 8, 1999 amendment, it was unclear whether the amicus
brief could be filed as late as the deadline for filing the reply brief. See 29 C.F.R. § 2700.74(b)
(1998).

    The CWU’s amicus brief was not timely filed under Rule 74. Although the CWU’s

position is not identical to the Secretary’s position in this matter, both the Secretary and the
CWU seek to overturn the judge’s decision. Consequently, we treat the CWU’s position as more
closely aligned with the Secretary’s than with the operator’s. Thus, the CWU was required to file
its amicus brief within the Secretary’s initial briefing period, which ended on January 24, 2000,
30 days after the Commission’s direction for review. The CWU did not file its brief until
January 27, three days late. In addition, the CWU did not file a motion for extension of time
under Commission Procedural Rule 75(c), 29 C.F.R. § 2700.75(c).

     Commission Procedural Rule 75(d), governing briefs, states that the Commission “may

decline to accept a brief that is not timely filed.” 29 C.F.R. § 2700.75(d) (emphasis added). We
have been liberal in granting amicus status. See, e.g., Peabody Coal Co., 18 FMSHRC 494, 497
(Apr. 1996). We have also frequently granted extensions of time to file briefs. The CWU’s
failure to timely file its brief, and a motion for extension of time, may be attributable to the
recent change in our procedural rules.

   Under these circumstances, we grant the CWU’s motion to participate as amicus curiae,

and accept its late-filed amicus brief.

   3
       Commissioner Marks would grant the CWU’s motion to intervene.

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Page 4

   Our decision in this matter may affect the manner in which the Secretary will be

permitted to sample for respirable dust. To this end, we invite any interested organizations or
persons to file motions for leave to participate as amici and amicus briefs in this matter. Any
motions and amicus briefs submitted shall be filed no later than 30 days from the date of this
order and, pursuant to Commission Procedural Rule 75(c), shall not exceed 25 pages. 29 C.F.R.
§ 2700.75(c). We hereby toll the time for parties to respond to the CWU’s brief pending further
Commission order.

                                        Mary Lu Jordan, Chairman




                                        Marc Lincoln Marks, Commissioner




                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




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Distribution
by regular mail

Randall Vehar, Esq.
International Chemical Workers Union Council
1655 West Market Street
Akron, OH 44313-7095

Timothy Biddle, Esq.
Sarah L. Seager, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

By facsimile

Michael Duffy, Esq.
National Mining Association
1130 17th St., N.W.
Washington, D.C. 20036

Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031-2215

                                22 FMSHRC 322