The Youghiogheny and Ohio Coal Company (ALJ decision, April 17, 1986)

Plain-English summary

The Youghiogheny and Ohio Coal Company contested two withdrawal orders issued under the Mine Act's repeated-unwarrantable-failure provision. Judge Gary Melick had previously found the violations and unwarrantable failure underlying those orders, but deferred a final ruling while other judges considered the earlier citation and order needed to support their validity. After those underlying actions were upheld, he affirmed both withdrawal orders and dismissed the company's contests. This decision does not identify the particular safety standards violated or assess a civil penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(d)(1) and (2), withdrawal orders following significant and substantial violations caused by unwarrantable failure.
• Outcome: Both section 104(d)(2) withdrawal orders affirmed; contests dismissed.
• Key point: The two orders remained valid after the underlying citation and order required by section 104(d) were upheld.

Full text (FMSHRC public release)

CCASE:
YOUGHIOGHENY & OHIO V. SOL (MSHA)
DDATE:
19860417
TTEXT:
~606

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

THE YOUGHIOGHENY AND OHIO
CONTEST PROCEEDINGS
COAL COMPANY,
CONTESTANT
Docket No. LAKE 85-74-R
Order No. 2330533; 4/9/85 v.
Docket No. LAKE 85-75-R
SECRETARY OF LABOR,
Order No. 2330535; 4/9/85
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Nelms No. 2 Mine
RESPONDENT

DECISION

Appearances: Robert Kota, Esq., Youghiogheny and Ohio Coal Company, St. Clairsville, Ohio, for Contestant;
Patrict M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, for Respondent.

Before: Judge Melick

These consolidated proceedings are before me upon the Notices of Contest filed by Youghiogheny and Ohio Coal Company (Y & O) under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the "Act," to challenge the issuance by the Secretary of Labor of two withdrawal orders (Nos. 2330533 and 2330535) under the provisions of section 104(d)(2) of the Act.(FOOTNOTE 1) ~607
Hearings were held concerning the merits of these orders on September 25, 1985, but a final decision was deferred pending decisions by other judges concerning the validity of the underlying section 104(d)(1) citation and order that were conditions precedent to the validity of the orders at bar. A determination upholding the violations cited in the instant orders and a finding that the violations were caused by the "unwarrantable failure" of the mine operator were previously made by decision of the undersigned dated October 29, 1985 (Secretary v. Youghiogheny and Ohio Coal Company, Docket No. LAKE 85Ä90, Appendix A).

The underlying citation (No. 2331148) and order (No.
2328954) were subsequently upheld respectively by decisions of Commission Judges in Youghiogheny and Ohio Coal Company v. Secretary of Labor, Docket No. LAKE 85Ä76ÄR (March 7, 1986, Judge Maurer), and Secretary of Labor v. Youghiogheny and Ohio Coal Company, Docket No. LAKE 85Ä63 (February 4, 1986, Judge Broderick). Accordingly the section 104(d)(2) orders at bar (Orders Nos. 2330533 and 2330535) are affirmed and the contests of those orders are dismissed.

                        Gary Melick
                        Administrative Law Judge

1 Section 104(d)(2) provides as follows:
"If a withdrawal order with respect to any area in a coal or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the provisions of paragrpah (1) shall again be applicable to that mine." Section 104(d)(1) provides as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this Act."