Nolichuckey Sand Co., Inc.

Plain-English summary

Nolichuckey asked the Commission to stay abatement of six citations involving guards on conveyor belts while review of the ALJ decision was pending. The Commission held that the Mine Act bars temporary relief from citations issued under section 104(a), even when the operator disputes the citations and argues that the conditions are not significant and substantial. The majority denied the motion but criticized MSHA's decision to require abatement after earlier extensions, while the Chairman and Commissioner Marks concurred in the result and disagreed with that criticism. The six citations therefore remained subject to abatement.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(b)(2) and (b)(2)(C); 29 C.F.R. § 2700.46(a)
• Outcome: Nolichuckey's motion to stay abatement was denied.
• Key point: The Commission cannot grant temporary relief from a citation issued under section 104(a).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    November 30, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket Nos. SE 99-101-RM
ADMINISTRATION (MSHA) : SE 99-102-RM
: SE 99-103-RM
v. : SE 99-104-RM
: SE 99-105-RM
: SE 99-106-RM
NOLICHUCKEY SAND CO., INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                         ORDER

BY: Riley, Verheggen, and Beatty, Commissioners

     Before us is a “Motion to Stay Abatement” filed by Nolichuckey Sand Company, Inc.,

(“Nolichuckey”) on September 22, 1999 in the above-captioned proceedings. Mot. at 1. The
motion recites that on January 28, 1999, MSHA issued Nolichuckey six citations alleging
violations of 30 C.F.R. § 56.14109(a). Id.; see 21 FMSHRC 681, 682 (June 1999) (ALJ). The
Department of Labor’s Mine Safety and Health Administration (“MSHA”) agreed to extend the
time period for abatement of the citations at issue until the judge rendered his decision. Mot. at

1. Administrative Law Judge Avram Weisberger upheld the citations on June 30. Id. MSHA
   further extended until October 1 the date by which the operator was to abate the cited conditions.
   Id. at 1-2. In support of its motion, Nolichuckey states that review of the judge’s determination
   in this matter is pending before the Commission, that briefing in this matter will not be complete
   by the date by which it must abate the cited conditions, that the alleged violation is non-
   significant and substantial, that MSHA’s enforcement position prior to these citations’ issuance
   was that the operator was in compliance with the safety standard, and that continuation of the
   status quo would not place miners at risk of bodily injury. Mot. at 2.

   The Secretary of Labor opposes Nolichuckey’s motion. The Secretary submits that
   

   section 105(b)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(b)(2)
   (1994) (“Mine Act” or “Act”), “prohibits the Commission from granting temporary relief . . . in
   the case of a citation issued under subsection (a) or (f) of Section 104 [of the Act].” S. Opp’n at
   2 (citing 30 U.S.C. § 815(b)(2)). The Secretary’s opposition also cites Energy Fuels Corp., 1
   FMSHRC 299, 306 (May 1979), which states that the Mine Act “does not permit the
   Commission to stay abatement requirements of a citation during litigation.” Id.

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   The citations at issue in the instant matter were issued under section 104(a) of the Mine

Act. See 21 FMSHRC at 682. In effect, Nolichuckey’s motion requests temporary relief from
abatement. The text of section 105(b)(2)(C) provides in part that “[n]o temporary relief shall be
granted in the case of a citation issued under subsection (a) or (f) of section 104.” 30 U.S.C. §
815(b)(2)(C); see also 29 C.F.R. § 2700.46(a) (providing that the Commission may not grant
temporary relief with respect to citations issued under section 104(a) of the Mine Act).

    In Pennsylvania Electric Co., 11 FMSHRC 793 (May 1989), the operator requested that

the Commission enjoin MSHA enforcing citations pending a Commission decision. Id. We
noted that section 105(b)(2) “specifically states that ‘[n]o temporary relief shall be granted in the
case of a citation issued under subsection (a) . . . of section [104]’ of the Act.” Id. We denied
the operator’s request, and held that “the two citations in question were issued under section
104(a) of the Act. Thus, by the express terms of the Act, temporary relief may not be granted in
this case.” Id. at 793-94. Similarly, in Utah Power & Light Co., Mining Div., 11 FMSHRC 953
(June 1989), we held that “the citation from which temporary relief is sought by [the operator] is
a section 104(a) citation . . . and as such is not within the purview of section 105(b)(2) relief.
Accordingly, [the operator’s] Application for Temporary Relief is denied.” Id. at 958; see also
Energy Fuels, Corp., 1 FMSHRC 299, 306 (May 1979) (“Furthermore, the Commission cannot,
unless a final order favorable to Energy Fuels is issued, relieve Energy Fuels of its
responsibilities to continue to maintain the cited condition in compliance. The 1977 Act does not
permit the Commission to stay abatement requirements of a citation during litigation.”) (citing
sections 104(b) and (h), 105(b)(1)(A) and (b)(2) of the Act).

     Contrary to Nolichuckey’s assertion, section 105(d) does not require a different result.

Section 105(d) provides that an operator may contest certain issues before a Commission judge,
including the issuance or modification of an order issued under section 104 or the reasonableness
of the length of abatement time fixed in a citation or modification thereof issued under section

104. See 30 U.S.C. § 815(d). However, Nolichuckey currently requests what amounts to
     temporary relief from the abatement requirement, not a review of the reasonableness of the time
     set for abatement. Mot. to Stay Abatement at 1. We previously have applied section 105(b)(2) to
     operator requests to stay abatement requirements related to section 104(a) citations. See
     Pennsylvania Electric Co., 11 FMSHRC at 793; Utah Power & Light, 11 FMSHRC at 953.
     Moreover, Nolichuckey failed to contest the reasonableness of abatement time, either in its
     contest or in its Petition for Discretionary Review.

     The plain language of section 105(b)(2) mandates that we deny the requested relief.
     

     However, we find several circumstances presented by this case troubling. It appears that the
     Secretary agreed to extend the abatement period for the citations at issue here during the
     pendency of this litigation. This made sense given that MSHA’s position before the citations
     were issued was that the operator was in compliance with the relevant safety standards. 21
     FMSHRC at 682 n.2. Indeed, MHSA extended the abatement period until October 1, 1999 —
     for a condition cited in January 1999.

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    MSHA has apparently declined, however, to extend the abatement period any further,

notwithstanding the fact that the agency apparently decided to re-evaluate its position regarding
the application of 30 C.F.R. § 56.14109(a) to the guards used by Nolichuckey. Since MSHA is
advancing a new position regarding a specific condition that was previously deemed in
compliance, we believe, in this case, it would be appropriate and reasonable for MSHA to opt not
to press for abatement.

    The Commission is bound, however, by the terms of the Mine Act, and the Act does not

allow us to intervene here and order the Secretary to continue her forbearance. Instead, if
Nolichuckey wants further vindication, it must risk defying MSHA’s abatement period so that it
might obtain a closure order and institute further proceedings before the Commission. The
Secretary’s insistence at this particular time to require abatement makes little sense — her brief
certainly sheds no light on why abatement is suddenly needed now. Absent any explanation, we
find her position unfortunate and merely a potential cause of additional litigation.1

  In sum, and in accordance with Commission case law, we hold that the provision of

temporary reinstatement procedures in section 105(b)(2) of the Mine Act does not include
temporary relief from section 104(a) citations.

   1
      While our concurring colleagues characterize our concerns as “gratuitous” and

“dabbl[ing] in the affairs” of MSHA (slip op. at 5), we note that this Commission has not been
reluctant in the past to scrutinize the Secretary’s enforcement activities. See, e.g., Minerals
Exploration Co., 8 FMSHRC 477, 478 (Apr. 1986) (“we express our strong disapproval of and,
as appropriate, serve warning with respect to some of the activities of certain MSHA officials
and the Secretary’s trial counsel”). In fact, this scrutiny was recently reemphasized by the
Commission in Black Diamond Constr., Inc., 21 FMSHRC __, No. EAJ 98-1 (Nov. 3, 1999). In
Black Diamond, a Commission majority expressed disapproval of the Secretary’s position in an
EAJA case by stating that “it is hardly reasonable for a litigant to be forced to bear the
considerable cost of defending itself over many months . . . while an enforcement agency ignores
essential information brought to its attention at the outset.” Slip op. at 11.

    In light of the Commission’s previous willingness to scrutinize the Secretary’s

enforcement activities, it is unfair to characterize our position here as “gratuitous” and
“dabbl[ing] in the affairs”of MSHA. It is important that all members of the Commission
recognize that Congress established this impartial adjudicative body to, among other things,
“review[] the enforcement activities of the Secretary” and “provide guidance to [her] in enforcing
the [Mine Act].” Hearing on the Nomination of Members of the Federal Mine Safety and Health
Review Commission before the Senate Comm. on Human Resources, 95th Cong., 1 (1978). We
are not prepared to join our concurring colleagues in their willingness to turn a blind eye to this
important statutory responsibility imposed by the Mine Act.

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    Accordingly, upon consideration of Nolichuckey’s motion, and in accordance with the

plain language of section 105(b)(2) of the Act and Commission Procedural Rule 46(a), we deny
the operator’s motion.

                                       James C. Riley, Commissioner




                                       Theodore F. Verheggen, Commissioner




                                       Robert H. Beatty, Jr., Commissioner




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Chairman Jordan and Commissioner Marks, concurring:

     We agree with our colleagues that the plain language of the Mine Act clearly states that

an operator may not be granted temporary relief in a case arising from a citation issued under
section 104(a) of the Act. We are therefore in accord with the majority’s denial of Nolichuckey’s
motion to stay abatement, as the operator is requesting a remedy explicitly precluded by the
statute.

   We write separately, however, because we wish to disassociate ourselves from the

majority’s gratuitous criticism of the Secretary’s decision to require abatement as of October 1.
The judge in this case found six violations of the regulation mandating stop cords or railings on
conveyor belts. The Secretary, who is charged with enforcing the Mine Act, has determined that
any additional delay in abating these violations is not warranted. We are most reluctant to
second-guess that decision and announce that this regulation — designed to ensure the safety of
miners working near the belt — should not now be enforced.

    When the majority interpreted — correctly — the clear language of the Mine Act to

mandate the denial of temporary relief to Nolichuckey, its task was complete. To then opine on
the propriety of the Secretary’s enforcement action at this stage of the proceedings appears to be
little more than the attempt of an adjudicatory agency to dabble in the affairs of its prosecutorial
counterpart. We do not know why the Secretary agreed to the previous extension of the
abatement period, nor have we been provided with any information as to what prompted her
decision to impose abatement as of October 1. On the basis of the pleadings filed in this
proceeding, we are unwilling to draw conclusions about the implications for miner safety if the
abatement period were extended beyond that date.1

                                          Mary Lu Jordan, Chairman



                                          Marc Lincoln Marks, Commissioner


   1
       Commissioner Marks also notes:

      In light of the fact that Nolichuckey is represented by competent and experienced

counsel, I find that my colleagues’ suggestion to Nolichuckey on how to proceed in order to
obtain “further vindication” against the Secretary is not only superfluous to the holding in this
case but it is inappropriate, as the Commission is not in the business of providing legal advice on
how to proceed against the Secretary.

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Distribution

Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

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