Austin Powder Company v. Secretary of Labor; Secretary of Labor v. Austin Powder Company (ALJ decision, October 20, 2014)

Plain-English summary

The Secretary asked to consolidate all pending Austin Powder matters to determine whether the company and its subsidiaries were unitary operators. Austin Powder objected that the issue should be decided case by case, but it had previously sought stays because the same issue was being litigated in the lead matter. Judge Kenneth R. Andrews found that all eight dockets presented the same unitary-operator question. He consolidated them for hearing and decision in the interest of judicial economy. The parties were ordered to identify any additional Austin Powder dockets involving the same issue and to use PENN 2012-172 as the lead docket.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.12
• Outcome: Eight Austin Powder contest and penalty dockets were consolidated for hearing and decision.
• Key point: Related cases may be consolidated when they share a common unitary-operator issue, especially when a party has already treated the lead case as controlling.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

AUSTIN
POWDER COMPANY,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

AUSTIN
POWDER COMPANY,

Respondent

CONTEST
PROCEEDING

Docket
No. PENN 2012-116-R

Citation
No. 7040091;01/20/2012

River
Hill Coal Co., Inc.

Mine
ID 36-00884 A2708

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2012-172

A.C.
No. 36-00884-281523 E24

Mine:
River Hill Coal Co., Inc.

Docket
No. PENN 2012-77

A.C.
No. 36-09312-273298

Mine:
Allegheny Strips

Docket
No. CENT 2013-213

A.C.
No. 23-02262-309819

Mine:
Hume #1

Docket
No. KENT 2013-274

A.C.
No. 15-19451-307263 E24

Mine:
S-9 Findlay Branch

Docket
No. KENT 2012-1030

A.C.
No. 15-17834-287578 E24

Mine:
F-9 Prater Branch

Docket
No. SE 2012-128

A.C.
No. 01-03375-273206

Mine:
Johnson Mine

Docket
No. VA 2012-542

A.C.
No. 44-07133-293119

Mine:
No. 26 Strip

AMENDED ORDER TO
CONSOLIDATE[1]

Before: Judge Andrews

On August 15,
2014, the Secretary requested that all pending matters alleging violations of the Federal Mine Safety and Health Act of 1997 (Mine Act) against Austin Powder Company be consolidated for hearing and decision. The Secretary submits it is necessary to determine whether Austin Powder Company and its subsidiaries are unitary operators. Respondent objects to consolidation, arguing that the unitary operator issue must be determined on a case-by-case basis. However, Respondent previously moved for the above-cited proceedings to be stayed pending the outcome of PENN 2012-172, thus underscoring the common relationship in the issues presented in PENN 2012-172 and the other dockets. Indeed, Respondent states in its motions that “the issues will be identical to those being litigated in PENN 2012-172.”

Pursuant to 29
C.F.R. §2700.12, the undersigned may consolidate dockets for “proceedings that involve similar issues.” All eight dockets include the issue of whether Austin Powder Company and its subsidiaries constitute a unitary operator. Therefore, in the interest of judicial economy, the above captioned dockets are hereby CONSOLIDATED for hearing and decision. The parties are also hereby ORDERED to report any other Austin Powder Co. dockets that should also be consolidated due to the similar unitary operator issue.

All of the
above-captioned dockets have been assigned to the undersigned. When filing additional submissions, parties must reference the undersigned and the lead docket, PENN 2012-172.

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Stephen
Turrow, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209

Anthony
M. Berry, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

Kimberly
M. Engel, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106

Elizabeth
L. Friary, Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

Virginia
E. Fritchey, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202

Thomas
A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219

Dominique
Gutierrez, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

C.
Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

Carol
Liang, Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Jennifer
Y. Pao, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106

David
A. Steffey, CLR, MSHA, U.S. Department of Labor, P.O. Box 560, Norton, VA 24273

Adele
L. Abrams, Esq., CMSP, Law Office of Adele Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705

David
J. Hardy, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

James
(Jim) P. McHugh, Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

Christopher
D. Pence, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

Eric
L. Silkwood, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

Wm.
Scott Wickline, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

/nsc

[1]
A.C. No. 36-00884-281532 has been amended to A.C. No. 36-00884-281523. A.C. No. 36-0932-373298 has been amended to A.C. No. 36-09312-273298. Docket No. KENT 2012-274 has been amended to Docket No. KENT 2013-274.