White Oak Resources, LLC v. Secretary of Labor

Plain-English summary

White Oak contested two section 104(d)(1) orders alleging failure to follow its roof-control plan and failure to conduct a required preshift examination. It sought an expedited hearing, arguing that MSHA's interpretation could expose the mine to repeated orders and heightened future penalties. Judge Alan G. Paez found no extraordinary circumstances or continuing harm because the orders had been abated and terminated, production had not stopped, and the claimed future consequences were speculative. He denied expedited treatment and stayed the contests until the Secretary filed the companion civil-penalty cases. Discovery could continue during the stay, after which the contest and penalty matters would be consolidated.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1) and 75.360(a)(1)
• Outcome: The expedited-hearing motion was denied, and both contest proceedings were stayed pending companion penalty cases.
• Key point: Fear of future enforcement does not justify expedition without concrete, extraordinary, and continuing harm.

Full text (FMSHRC public release)

FO#5D.WPD

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

August 21, 2014

WHITE OAK RESOURCES, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH  

ADMINISTRATION
(MSHA),

Petitioner

CONTEST PROCEEDINGS

Docket
No. LAKE 2014-650-R

Order
No. 8450348; 07/24/2014

Docket
No. LAKE 2014-651-R

Order
No. 8450350; 07/24/2014

White
Oak Mine No. 1

Mine ID 11-03203

ORDER DENYING
CONTESTANT’S MOTION FOR EXPEDITED HEARING

AND

ORDER STAYING
CONTEST PROCEEDINGS

These proceedings are before me upon the Notice of Contest filed by White Oak
Resources, LLC (“White Oak” or “Contestant”) on August 6, 2014, pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815. White Oak contests the validity of Order Nos.
8450348 and 8450350, issued pursuant to section 104(d)(1) of the Mine Act.1 30 U.S.C. § 814(d)(1).
On the same day, counsel for White Oak also filed a Motion for Expedition of
Proceedings. (Contestant Mot. at 1.) Chief Administrative Law Judge Robert J.
Lesnick assigned this case to me on August 8, 2014. Counsel for the Secretary
filed a timely Response in Opposition to Contestant’s Motion to Expedite on
August 15, 2014. 2  

I.  Motion for
Expedited Hearing

In
its Notice of Contest, White Oak asserted that at the time these orders were
issued, the mine was in compliance with the approved roof control plan in all
construction areas, and thus the orders were “clearly erroneous and must be
vacated,” as their issuance was “arbitrary, capricious and [] not in accordance
with law.” (Contest Notice at 2.) White Oak claimed it similarly “excavated 16
such areas as those cited in the [o]rders, in compliance with the construction
provisions of the approved roof control plan” since June 2013, and that MSHA
inspectors previously found no violations.

White
Oak attached to its Notice of Contest copies of both orders as a single
exhibit. (Contest Notice, Ex. 1 at 1–6.) Order No. 8450348, dated July 24,
2014, alleges a violation of 30 C.F.R. § 75.220(a)(1), which requires mine
operators to develop and follow an approved roof control plan.3 As noted in the body of
the order, MSHA Inspector Glenn Fishback observed that Contestant’s mining
height exceeded seven feet in the 1 North Main return construction entry #1
between crosscuts 21 and 23 and that no rib bolts were present. The order
further alleges that White Oak’s construction violated its approved roof
control plan, which requires the operator to install rib support in areas
developed after April 15, 2014, where the mining height exceeds seven feet. Finally,
the order alleges that the violation affected two people, that it was
reasonably likely to cause injury or illness, and that any injury or illness
would result in lost workdays or restricted duty. (Contest Notice, Ex. 1 at 1–4.)

Order No. 8450350, also dated July 24,
2014, alleges a violation of 30 C.F.R.          § 75.360(a)(1), which requires
mine operators to conduct a preshift examination prior to the start of any
eight-hour work interval.4
Inspector Fishback found no record of a preshift examination at the 1
North Main “over-cast construction site” prior to a scheduled work shift on
July 24. (Contest Notice, Ex. 1 at 5.) The order alleges that the violation
affected two people, that it was highly likely to cause injury or illness, and
that any injury or illness would have resulted in lost workdays or restricted
duty. (Contest Notice, Ex. 1 at 5–6.)

Now,
in a sparse, two-page motion devoid of any citation to law, Contestant requests
a hearing on an expedited basis, seeking a decision on whether the construction
procedures being performed at White Oak Mine No. 1 violate the mine’s approved
roof control plan. (Contestant Mot. at 1.) In support of its motion for an
expedited hearing, Contestant parrots its Notice of Contest and alleges the
Secretary’s two orders do not have any basis in fact or law. (Contestant Mot.
at 1.) Contestant again claims it has similarly excavated 16 other areas since
June 2013 in accordance with the mine’s approved roof control plan without
incident. (Id.) According to White Oak, Order No. 8450348 calls into question
whether Contestant’s ongoing excavation complies with the mine’s current roof
control plan. (Id.) Contestant fears that delaying the ultimate
determination on both orders’ legitimacy would potentially expose White Oak to
numerous similar violations, as well as higher penalties for pattern of
violations determinations and flagrant violations. (Id. at 2.)

The
Secretary responds that Contestant has made no showing that justifies
adjudicating these orders on an expedited basis under Commission Procedural
Rule 52, 29 C.F.R. § 2700.52. (Sec’y Resp. at 1.) The Secretary maintains that
under Commission case law White Oak has failed to meet its burden and that the
orders were issued for “standard violations of a roof control plan and do not
merit special consideration or treatment at an expedited hearing.” (Id. at
1–2.) The Secretary emphasizes that the orders in dispute relate to the
application of a new roof control plan put in place in April 2014. (Id.
at 1.) Importantly, the Secretary points out that White Oak does not allege
that coal production has been stopped by the issuance of either order. (Id.)

Commission
Procedural Rule 52 sets forth the procedures for requesting and scheduling an
expedited proceeding, but it does not address the standards under which such a
request is to be evaluated. 29 C.F.R. § 2700.52. In Wyoming Fuel
Company, the Commission held that consideration of an expedited hearing
request remains within the discretion of the Judge. Further, the Commission
indicated that the Act neither mandates immediate hearings in all
circumstances, nor requires that a party’s motion to expedite proceedings be
granted on the terms sought; rather, a hearing must be held “within a
period of time reasonable under the circumstances of each case.” 14 FMSHRC
1282, 1287 (Aug. 1992). Commission Judges have held that for an operator to be
entitled to such consideration it must show: (1) extraordinary or unique
circumstances (2) resulting in continuing harm or hardship. See Sw. Portland
Cement Co., 16 FMSHRC 2187, 2187 (Oct. 1994) (ALJ).

Here,
Contestant’s argument boils down to a fear that future MSHA enforcement of the
standard, as the inspector applied it in this case, will expose Contestant to a
parade of horribles including a series of heightened penalties. White Oak’s
predicament might qualify as a continuing harm or hardship if it could show
MSHA’s current enforcement of the roof control plan left the mine shuttered or
paralyzed. Contestant falls short of this bar. Indeed, the two orders are not
alleged to have affected production in any way, and White Oak abated them by
complying with the approved plan, which led to the orders being terminated on
July 31, 2014. (Contest Notice, Ex. 1 at 4.) Although White Oak asserts the
orders in dispute expose it to possible flagrant violations or pattern of
violations determinations under § 110(b)(2) or § 104(e) of the Mine
Act, Contestant offers no information to substantiate these concerns. (Contestant
Mot. at 2.) Lacking any further details of White Oak’s predicament, I am left
to hypothesize at the scope and magnitude of harm that Contestant could face. No
matter how creative, such hypotheticals are insufficient to carry White Oak’s
burden of demonstrating continuing harm. Consequently, I determine that any
continuing harm or hardship is uncertain and tenuous at best.

White Oak also has not explained why its
burden of compliance with the roof control plan ranks as extraordinary among
its industry peers. Merely claiming an extraordinary burden does not elucidate
how such a unique burden would befall Contestant but not its competitors. Every
day operators face possible citations and orders that might impede continued
operations. The mere potential for future citations or orders—even those whose
enforcement would make future operations uneconomical or impossible—is not
unique to Contestant. Cf. Consolidation Coal Co., 16 FMSHRC 495,
496 (Feb. 1994) (ALJ) (“While I am certain the contestant finds little comfort
in the fact that thousands of [section 104(d)] orders are issued each year, it
is nonetheless not alone in its alleged predicament. Consequently, there are no
special circumstances justifying an expedited hearing.”). White Oak’s
circumstances are far from extraordinary.

White Oak will have its day in court; it
simply has not shown the need for an expedited hearing. Upon my review of the
pleadings, I determine that Contestant has not met its burden of showing
extraordinary or unique circumstances resulting in continuing harm or hardship.
Therefore, Contestant’s Motion for Expedition of Proceedings is hereby DENIED.

II.  Stay of
Contest Proceedings

Contest
proceedings before Commission Judges are typically stayed until the filing of
their companion penalty proceedings, at which time the contest and penalty
cases are consolidated for hearing and decision. See Marfolk Coal Co.,
29 FMSHRC 626 (Aug. 2007). This is an efficient procedure, which conserves
judicial resources by not necessitating the holding of two separate hearings in
the contest and penalty proceedings. See Commission Procedural Rules 12
and 55, 29 C.F.R. §§ 2700.12, 2700.55.

Here, I determine it is proper to stay
these contest proceedings until the filing of the companion penalty case for
the reasons stated above. Therefore, it is hereby ORDERED that these
contest proceedings are STAYED until the Secretary files a petition for
the assessment of civil penalty and White Oak files an answer. Discovery, if
the parties so desire, may take place during the stay. The parties are further ORDERED
to notify my office when they file their respective pleadings (petition and
answer) in the penalty proceeding, so I may then consolidate the contest and
penalty cases for hearing and disposition.

/s/ Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:
(Via Electronic Mail & U.S. Mail)

Billy R. Shelton, Esq., Jones,
Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 310,
Lexington, KY 40509

([email protected])

Suzanne
F. Dunne, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn
Street, 8th Floor, Chicago, IL 60604

([email protected])

/lct                                                      

1

Contestant
filed a Notice of Contest on August 6, 2014 (hereinafter referenced as “Contest
Notice”), and a Motion for Expedition of Proceedings also dated August 6, 2014
(“Contestant Mot.”). The Secretary made only one filing on August 15, 2014, a
Response in Opposition to Expedited Hearing (“Sec’y Resp.”).

2

Counsel for White Oak
subsequently filed a Reply to the Secretary’s Response in Opposition. Commission
Procedural Rule 10, 29 C.F.R. § 2700.10, which governs the filing of motions
before Commission Judges, allows for a statement in opposition to a written
motion; however, it does not provide for a reply. White Oak did not seek leave
from the Court to file its reply, and I see no reason to grant it sua sponte.
Nevertheless, I note that the additional information in White Oak’s Reply would
not affect my decision.

3

Section 75.220(a)(1) provides
that “[e]ach mine operator shall develop and follow a roof control plan,
approved by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine. Additional measures
shall be taken to protect persons if unusual hazards are encountered.” 30 C.F.R
§ 75.220(a)(1).

4

Section 75.360(a)(1) provides
that “[e]xcept as provided in paragraph (a)(2) of this section, a certified
person designated by the operator must make a preshift examination within
3 hours preceding the beginning of any 8-hour interval during which any
person is scheduled to work or travel underground. No person other than
certified examiners may enter or remain in any underground area unless a
preshift examination has been completed for the established 8-hour interval . .
. .” 30 C.F.R § 75.360(a)(1).