Wisconsin Industrial Sand Co. v. Secretary of Labor (ALJ decision, October 9, 2014)

Plain-English summary

Wisconsin Industrial Sand contested an escapeway citation and requested an expedited hearing because it viewed abatement as expensive or unnecessary and believed MSHA may have abused its discretion. Judge Thomas P. McCarthy found no extraordinary or unique circumstances requiring faster treatment. The citation had already been abated, no withdrawal order was pending, mine production continued, and the dispute concerned competing interpretations of the standard. He denied any further expedition and set the case for a November 24, 2014 hearing. The Secretary was also allowed to plead subsection 57.11050(b) as an alternative to subsection (a).

Decision snapshot

• Cited standards: 30 C.F.R. § 57.11050(a) and (b)
• Outcome: The motion for an expedited hearing was denied, and the contest remained scheduled for hearing.
• Key point: Expense and disagreement over a citation do not establish extraordinary hardship when the citation is abated, no withdrawal order is active, and production continues.

Full text (FMSHRC public release)

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2014-10-14T14:34:00Z
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EN-US
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SEQ CHAPTER \h \r 1                                                                              

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

WISCONSIN INDUSTRIAL SAND CO.,                                                                                                                         :                       CONTEST PROCEEDING

Contestant                                                                                                                                                                               :                       Docket No. LAKE 2014-0692-M

v.                                                                                                                                                                                             :                       Citation No. 6556664; 07/31/2014

:

:

SECRETARY OF LABOR,
                                                                                                                                                :

MINE
SAFETY AND HEALTH                                                                                                                                        :                       Mine: Maiden Rock

ADMINISTRATION (MSHA),                                                                                                                                          :                       Mine ID 47-03110

Respondent

ORDER DENYING MOTION FOR EXPEDITED
HEARING

Before:                        Judge McCarthy

This
case is before me upon a notice of contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Section 104(a) Citation No. 6556664 was issued to Respondent on July 31, 2014 for an alleged violation of 30 C.F.R. § 57.11050(a).

On August 29, 2014, Respondent
filed a Notice of Contest and a Motion for Expedited Hearing. 2014.  The Secretary filed a Response in Opposition to Respondent’s Motion on October 3, 2014.

On
September 29 and October 8, 2014, I held conference calls with the parties. During the latter conference call, I granted the Secretary’s motion, absent objection from Respondent, to plead 30 C.F.R. § 57.11050(b) in the alternative.

For
the following reasons, I deny the Respondent’s Motion for Expedited Hearing.

The
Commission’s Procedural Rule that addresses motions for expedited hearings is silent about criteria to guide when a motion for expedited hearing should be granted or denied. See 29 C.F.R. § 2700.52. Accordingly, Commission Administrative Law Judges are allowed “informed discretion” to determine whether an expedited hearing is necessary, and are directed to schedule a hearing within a reasonable time. Secretary of Labor (MSHA) v. Wyoming Fuel Co., 14 FMSHRC 1282 (Aug. 28 1992) (emphasis added).  Generally, Commission Judges have held that an expedited hearing is warranted upon a showing of “extraordinary or unique circumstances resulting in continuing harm or hardship.” Southwest Portland Cement Co., 16 FMSHRC 2187 (Oct. 4, 1994) (ALJ); Mountain Cement Co., 23 FMSHRC 694 (June 25, 2001)(ALJ); Consolidation Coal Company, 16 FMSHRC 495 (February 1994) (ALJ).

Respondent
argues that an expedited hearing is appropriate here because abatement is expensive and/or unnecessary. Respondent miscites Getchell Gold Corp., properly found at 21 FMSHRC 507 (May 1999) (ALJ), in support of this proposition.  That case involved a withdrawal order under Section 104(d)(2).  Section 105(d) of the Act requires the Commission to “take whatever action is necessary to expedite proceedings for hearing appeals of orders issued under section 104.” 30 U.S.C. § 815(d)(2014). This statutory requirement evinces “a congressional concern that contests of withdrawal orders be expeditiously heard, at least where

. . . the underlying violation has
not been abated.” Southern Ohio Coal Co.,
1 FMSHRC 1470, 1472 (Oct. 1979).

In this
case, no withdrawal order has issued. Furthermore, the Section 104(a) Citation has already been abated and no Section 104(b) Order is before me. The mine continues production, but has stopped developing an exhaust shaft until this matter is resolved.

Respondent
also argues that an expedited hearing is proper because there is a strong possibility that MSHA abused its discretion. Respondent relies on Mountain Cement, 23 FMSHRC 694 (ALJ). In Mountain Cement, the judge was concerned that MSHA abused its discretion because 20 violations were issued as 104(d)(2) orders, and most were subsequently modified during conference to 104(a) citations. Here, a single 104(a) Citation is at issue because the parties posit conflicting interpretations of MSHA’s standard. The operator’s disagreement with MSHA’s regulatory interpretation does not rise to the level of an extraordinary or unique circumstance under the facts presented.

In sum,
Respondent has not presented any extraordinary or unique circumstances that warrant an expedited hearing.

Per my
October 8 conference call with the parties, a Notice of Hearing will issue under separate cover setting this matter for hearing at 1 p.m. CST in Minneapolis, Minnesota on November 24, 2014 and continuing dates thereafter until completed.

Respondent’s
Motion for any further expedited hearing is DENIED.  

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Barbara Villalobos, Esq. U.S. Department of Labor, Office
of the Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604

Joshua Schultz, Esq., Office of Adele Abrams, 4740 Corridor
Place, Suite D, Beltsville, MD 20705

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