Consolidation Coal Company (ALJ decision, December 2, 1994)

Plain-English summary

Consolidation Coal Company was defending a civil penalty proceeding involving the Dilworth Mine. The Secretary's filing was presented by an MSHA Conference and Litigation Representative, or CLR, rather than an attorney from the Solicitor's Office. Judge Paul Merlin allowed the CLR to represent the Secretary under the Commission's rules because the notice authorized prehearing work and the operator had not objected. He ordered the parties to discuss settlement, witnesses, undisputed issues, and other ways to expedite the trial, with a prehearing conference set if they did not report the results by January 18, 1995.

Decision snapshot

• Cited provision: 29 C.F.R. § 2700.3(b)(4)
• Outcome: The CLR's appearance was accepted, and the parties were directed to confer about settlement and preparation for trial.
• Key point: A trained MSHA Conference and Litigation Representative may represent the Secretary in Commission proceedings with the presiding judge's permission under the Commission's rules.

Full text (FMSHRC public release)

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December 2, 1994

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. PENN 94-563
Petitioner : A. C. No. 36-04281-03908 :
v. : Dilworth Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

ORDER ACCEPTING APPEARANCE
PREHEARING ORDER

The penalty petition in the above-captioned case was filed on behalf of the Secretary by a "Conference and Litigation Representative", hereafter referred to as a CLR. In the cover letter to the petition the CLR advises that he is an employee of the Mine Safety and Health Administration who has been trained and designated as a CLR and is authorized to represent the Secretary in accordance with an attached Limited Notice of Appearance. In the notice the CLR states that he is authorized to represent the Secretary in all prehearing matters and that he may appear at a hearing if an attorney from the Solicitor's office is also present. The operator has filed an answer and has raised no objection to the CLR's notice.

Subparagraph (4) of section 2700.3(b) of the Commission's regulations, 29 C.F.R. 2700.3(b)(4), provides that an individual who is not authorized to practice before the Commission as an attorney may practice before the Commission as a representative of a party with the permission of the presiding judge. In reviewing this matter, note is taken of the fact that more than 5,000 new cases were filed with the Commission in Fiscal 1994. Obviously, a caseload of this magnitude imposes strains upon the Secretary's resources as well as those of this Commission. It appears that the Secretary is attempting to allocate his resources in a responsible matter. Therefore, I exercise the discretion given me by the regulations, cited above, and determine that in this case the CLR may represent the Secretary in accordance with the notice he has filed.

It is hereby ORDERED that the parties in the above-captioned civil penalty proceeding communicate, by telephone or otherwise, and discuss (1) possible settlement, (2) the names of the wit- nesses each party intends to present at the trial, (3) the possibility of stipulating issues that are not in substantial dispute, and (4) any other matter that may expedite the trial of this proceeding. The attorneys must advise by 5:00 p.m., January 18, 1995, of the results of their discussion.

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In the event that by January 18, 1995, I have received no communication from the parties informing me that the aforesaid discussion has taken place and that the possibilities of agreement have been exhausted, a prehearing conference will be held in my office on, January 19, 1995, at 10:00 a.m., without further notice. Failure to appear at the conference may result in a default order being issued against the party failing to appear.

If, of course, the parties advise me by 5:00 p.m. on January 18, 1995, as to the results, if any, of their discussion, no appearance will be necessary.

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)

Gerald F. Moody, Jr., Conference and Litigation Representative, Mine Safety and Health Administration, U. S. Department of Labor, 200 James Place, Monroeville, PA 15146

Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421

/gl