Secretary of Labor v. R & F Coal Company (ALJ decision, April 23, 1985)

Plain-English summary

R & F Coal Company contested citations involving the Rice No. 3 Strip mine. After both sides presented their evidence, the Secretary moved to withdraw the penalty petition and vacate the citations. Judge Joseph B. Kennedy granted that motion. With the Secretary's consent, he also gave an advisory view on the record that the charged violations had not occurred and urged changes to MSHA's enforcement of 30 C.F.R. § 77.1606(c). The written order dismissed the penalty petition and adopted the hearing disposition. It assessed no penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1606(c).
• Outcome: Challenged citations vacated; penalty petition dismissed.
• Key point: The Secretary withdrew the case after the hearing, and the judge granted vacatur of the citations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. R & F COAL
DDATE:
19850423
TTEXT:
~589
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 84-72
PETITIONER
A.C. No. 33-02312-03506
v.
Rice No. 3 Strip
R & F COAL COMPANY,
RESPONDENT

Appearances: F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. Department of Labor,
Cleveland, Ohio, for Petitioner;
Peter J. Zinaich, Esq., Pettay, Mosser & Tabacchi, Cadiz, Ohio, for Respondent.

DECISION

Before: Judge Kennedy

The captioned matter came on for an evidentiary hearing in Cleveland, Ohio on Thursday, April 18, 1985. After both parties rested, the solicitor sought a voluntary nonsuit by moving to withdraw the penalty petition and vacate the challenged citations. The operator demurred unless the solicitor would consent to entry of the trial judge's tentative bench decision as an advisory decision. The solicitor readily consented.

Whereupon the trial judge granted the motion to withdraw and vacate. Thereafter the trial judge delivered for the record his advisory decision finding the violations charged did not, in fact, occur and strongly recommending that for the future the Secretary take action to correct the due process deficiencies noted in MSHA's enforcement of 30 C.F.R. 77.1606(c).

The premises considered, it is ORDERED that the penalty petition be DISMISSED and that the matters entered of record ~590 at the hearing of April 18, 1985, be, and hereby are, CONFIRMED and ADOPTED as the trial judge's final disposition of this matter.

Joseph B. Kennedy
Administrative Law Judge