Secretary of Labor v. Orchard Coal Company, S & M Coal Company, Alfred Brown Coal Company, and B & B Coal Company (Commission decision, May 11, 2010)

Plain-English summary

Four anthracite operators sought Commission review of how MSHA was enforcing Mine Act requirements. They argued that the enforcement approach denied them an opportunity to request modification of those requirements and included a section 101(c) modification petition in their filing. The Commission held that it had no jurisdiction to grant that relief because the statute assigns the modification process exclusively to the Secretary of Labor or her designee. No two Commissioners voted to grant review of the remaining issues within the Commission's jurisdiction, so the petition was denied.

Decision snapshot

• Governing provision: 30 U.S.C. § 811(c)
• Outcome: The petition for discretionary review was denied.
• Key point: A petition to modify a mandatory safety standard under Mine Act section 101(c) must be directed to the Secretary, not the Commission.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 11, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

ORCHARD COAL COMPANY,

S & M COAL COMPANY,

ALFRED BROWN COAL COMPANY,

and B & B COAL COMPANY

Docket No. PENN 2010-339-E

Docket No. PENN 2010-340-E

Docket No. PENN 2010-342-E

Docket No. PENN 2010-343-E

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

ORDER DENYING PETITION FOR DISCRETIONARY REVIEW

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). The petition for discretionary review filed in this matter by Orchard Coal Company, S&M Coal Company, Alfred Brown Coal Company, and B&B Coal Company (hereinafter “Anthracite Operators”),

states that the Mine Safety and Health
Administration is enforcing Mine Act requirements in a way that has denied the Anthracite Operators the opportunity to seek modification of the requirements under section 101(c) of the Act, 30 U.S.C. § 811(c). The Anthracite Operators thus include within their petition for review a petition for relief under section 101(c).

The Commission is without jurisdiction to entertain a petition for relief under section 101(c). The statute clearly states that such petitions are to be directed to the Secretary of Labor, and the modification process is the sole province of the Secretary or her designee.

Consequently, the relief the Anthracite Operators seek under section 101(c) can only be granted by the Secretary.

No two Commissioners having voted to grant the petition for review on the issues over which the Commission does have jurisdiction, it is denied.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner

______

Patrick K. Nakamura, Commissioner

Distribution

Bradley S. Tupi, Esq.

Kenneth G. Scholtz, Esq.

Tucker Arensburg, PC

1500 One PPG Place

Pittsburgh, PA 15222

Stephen D. Turow, Esq.

Lynny Bowman Dunbar, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Alan Paez

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Administrative Law Judge Michael Zielinski

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021