Secretary of Labor v. The American Coal Company (Commission decision, April 25, 2014)

Plain-English summary

MSHA issued a section 103(k) order after inspectors observed smoldering combustion on a coal stockpile and cited The American Coal Company for failing to report the event immediately. The Commission had previously held that a mine fire can include smoldering combustion with a reasonable potential to burst into flames and remanded the section 103(k) dispute. A new ALJ then affirmed the order and relied on that ruling to affirm the reporting citation, but did so without allowing the parties to file briefs. The Commission held that fuller briefing was required because the Secretary's definition of mine fire had changed from the position presented at the original hearing. It vacated both ALJ decisions and remanded the consolidated cases for briefing and any further necessary proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(k) and 813(k); 30 C.F.R. § 50.10
• Outcome: The ALJ decisions affirming the section 103(k) order and reporting citation were vacated, and both cases were remanded.
• Key point: When a remand turns on a materially revised legal definition, the parties must receive a fair opportunity to brief how that definition applies to the record.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

April 25, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

THE AMERICAN COAL COMPANY

Docket Nos.    LAKE 2010-408-R

LAKE 2010-409-R

Docket No.     LAKE 2010-759

A.C. No.        11-02752-219590

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

ORDER

BY THE COMMISSION:                                  

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and involve an order and citation that were issued

to The American Coal Company by the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) following an inspection of a coal stockpile at American’s mine.[1]

On January 19, 2010, MSHA inspectors issued Order No. 8418503 to American pursuant to section 103(k) of the Mine Act after observing what they believed to be a “mine fire” on the stockpile.[2] The MSHA inspectors also issued Citation No. 8418504 for a failure to timely contact MSHA after the operator knew or should have known that the incident occurred pursuant to the requirements of 30 C.F.R. § 50.10.

Although American contested both the citation and the order, an Administrative Law Judge held an expedited hearing exclusively on Order No. 8418503. On September 28, 2010, the

Judge issued a decision vacating the order and concluding that because the inspectors did not observe a flame on the stockpile, the Secretary failed to establish the occurrence of a “mine fire.” 32 FMSHRC 1387, 1390-91 (Sept. 2010) (ALJ). The Secretary petitioned for review of the Judge’s decision, which the Commission granted.

On February 28, 2013, the Commission issued a decision concluding that a “mine fire” does not require the presence of a flame. 35 FMSHRC 380, 387 (Feb. 2013). The Commission stated that the Secretary reasonably interpreted the term “mine fire” in section 3(k) to include “both events marked by flaming combustion and events marked by smoldering combustion that reasonably has the potential to burst into flames.” Id. Accordingly, the Commission vacated the Judge’s decision and remanded the matter for further proceedings.

On remand, the matter was assigned to a second Administrative Law Judge.[3] On January 16, 2014, that Judge issued a decision that credited the testimony of the inspectors, found that a “mine fire” had occurred on the stockpile, and affirmed the order. 36 FMSHRC 176, 179-80 (Jan. 2014) (ALJ).

On February 14, 2014, American filed a petition for discretionary review of the Judge’s decision on remand, which the Commission granted. In its petition, American maintains, inter alia, that the Judge “denied [its] request for additional briefing before rendering her Decision.”

PDR at 20.

On February 19, 2014, the parties filed a list of joint stipulations with the Judge so that she could issue a decision on Citation No. 8418504, which had been issued for American’s failure to timely notify MSHA regarding the mine fire. The parties agreed that their only dispute with respect to the citation was whether a mine fire occurred on the stockpile. 36 FMSHRC __, slip op. at 2 (Docket Nos. LAKE 2010-409-R and LAKE 2010-759) (Mar. 3, 2014) (ALJ). The Judge relied on the parties’ stipulations as well as her January 16, 2014 decision in which she concluded that a mine fire had occurred. Id. She concluded that American violated section 50.10 when it failed to immediately report the accident to MSHA, and therefore she affirmed Citation No. 8418504. Id. at 3-4.

The issue of whether a mine fire occurred on the stockpile is common to the captioned proceedings. We conclude that American’s petitions raise issues which should have been more fully presented by the parties and considered by the Judge on remand. In particular, the issues that were presented to the Judge were somewhat unusual because the Secretary had presented a modified definition of the term “mine fire” to the Commission as compared to the definition that

he proffered at the initial hearing. 35 FMSHRC at 384-85. We conclude that the Judge should have provided the parties the opportunity to file briefs before issuing her January 2014 decision.

Accordingly, the Judge’s January 2014 decision regarding Order No. 8418503 is vacated. Because the January 2014 decision formed the basis for the Judge’s March 2014 decision regarding Citation No. 8418504, that decision is vacated as well.

These consolidated cases are remanded to the Judge so that the parties may file briefs fully addressing the issues. The Judge shall conduct further proceedings as necessary.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Jason W. Hardin, Esq.

Fabian & Clendenin

215 South State Street, Suite 1200

Salt Lake City, UT 84111-2323

[email protected]

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

[1]
The Commission consolidated the captioned cases pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, in the Direction for Review that was issued on April 4, 2014.

[2]
Section 103(k) provides that “[i]n the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine . . . .” 30 U.S.C. § 813(k) (emphasis added). Section 3(k) of the Mine Act defines the word “accident” to “include[] a mine explosion, mine ignition, mine fire . . . .” 30 U.S.C. § 802(k) (emphasis added).

[3]
The Administrative Law Judge who issued the September 2010 decision retired while the case was on review before the Commission.