Austin Powder Company (ALJ decision, October 31, 2006)

Plain-English summary

Austin Powder contested a non-significant and substantial citation and requested a hearing at a mutually agreeable time and place. Judge Jerold Feldman ordered the parties to agree on a hearing date within six weeks and report the date and location within 15 days. If they could not agree, the party preventing a timely hearing had to explain why the contest should not be dismissed or granted.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(d)
• Outcome: The parties were ordered to confer and report a hearing date and location, with written explanations required if no agreement was reached.
• Key point: Parties requesting adjudication must promptly cooperate in scheduling the hearing or risk an adverse disposition.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, D.C. 20001

October 31, 2006

AUSTIN POWDER COMPANY,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

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CONTEST PROCEEDING

Docket No. SE 2006-328-RM

Citation No. 7784642; 09/07/2006

Rock Hill

Mine ID 3800026 E24

ORDER TO CONFER ON HEARING DATE

This proceeding is before me based on a Notice of Contest of Citation No. 7784642, designated as non-significant and substantial, filed with the Commission on September 27, 2006, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (Mine Act), 30 C.F.R. § 815(d). In its contest, Austin Powder Company (Austin) “. . . requests that a hearing on the merits [for the purpose of vacating the citation] be held at a date, place, and time to be mutually agreed upon by the parties.” (Austin Contest, p.2).

Accordingly, IT IS ORDERED that the parties confer for the purpose of agreeing on a suitable hearing date within the next six weeks, as well as a suitable hearing location. The parties should advise me, in writing, within fifteen (15) days of this Order of the mutually satisfactory hearing date and location. IT IS FURTHER ORDERED that if the parties do not agree on a hearing date in furtherance of the prosecution of Austin’s contest, Austin should state, in writing, within fifteen (15) days of the date of this Order, why its contest should not be dismissed. If it is the Secretary who is unwilling to agree to a timely hearing, the Secretary should state, in writing, within fifteen (15) days, why Austin’s contest should not be granted.

Jerold Feldman

Administrative Law Judge

(202) 434-9967

Distribution: (Certified Mail)

Adele L. Abrams, Esq., CMSP, Law Office, 4740 Corridor Place, Suite D,

Beltsville, MD 20705

Deborah C. Wakefield, Esq., Office of the Solicitor, U.S. Department of Labor,

61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

/mh