Westmoreland Coal Company (ALJ decision, February 5, 1981)

Plain-English summary

Westmoreland Coal contested an MSHA withdrawal order issued at its Bullitt Mine for a downed line curtain. At the hearing, Judge Gary Melick noted that no earlier section 104(d)(1) citation existed when MSHA issued the withdrawal order, even though the statute required one. MSHA agreed to change the order to an ordinary section 104(a) citation, and Westmoreland then asked to withdraw its contest. The judge approved the withdrawal and dismissed the proceeding. He made no merits ruling on whether the amended citation established a safety violation or a penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(d)(1), withdrawal order prerequisites, and 30 U.S.C. § 814(a), ordinary citations.
• Outcome: Withdrawal order amended to a section 104(a) citation; contest withdrawn and dismissed, with no penalty assessed in this decision.
• Key point: The required underlying citation did not exist when MSHA issued the section 104(d)(1) order.

Full text (FMSHRC public release)

CCASE:
WESTMORELAND COAL v. SOL (MSHA)
DDATE:
19810205
TTEXT:
~402
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

WESTMORELAND COAL COMPANY,
Contest of Order
CONTESTANT
v. Docket No. VA 81-4-R

SECRETARY OF LABOR,
Order No. 692905
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Bullitt Mine
RESPONDENT

Appearances: Thomas L. Hopkins, Esq., Big Stone Gap, Virginia, for Contestant;
Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for Respondent

DECISION GRANTING WITHDRAWAL OF CONTEST

Before: Judge Melick

At hearing in Abingdon, Virginia, on January 7, 1981, MSHA agreed to amend the order of withdrawal at issue (FN.1) changing it to a citation under ~403 section 104(a) (FN.2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the "Act." The Westmoreland Coal Company thereafter requested to withdraw its contest which I approved at hearing and now affirm. The background of events leading up to this action was discussed in a bench decision which is set forth below:

This proceeding is a contest by the Westmoreland Coal Company of Order No. 692905. It was the Government's position in this case that that order was issued orally on September 11, 1980, at 12:01 p.m., and the fact that it was not committed to writing until the 18th of September was irrelevant. It argued that since the order was issued on the 11th and the factors giving rise to that order occurred at that time, the order was therefore issued "forthwith" as required by section 104(d)(1) of the Act. It turns out, however, and there is no dispute over this, that at the time that order was orally issued on September 11, there was no precedential section 104(d)(1) citation in existence.
Such a citation is clearly a prerequisite to the issuance of a 104(d)(1) order. The Government now concedes that another section 104(d)(1) order (No.
692904) issued on September 11, which was subsequently amended on September 18 to become a 104(d)(1) citation, could not have had retroactive effect to furnish the requisite underlying 104(d)(1) citation needed on September 11, to provide the necessary foundation for the 104(d)(1) order now before me.

I have also expressed my reservations with the effort by the Government to bootstrap a 104(d)(1) order using a 104(d)(1) citation based on the same event giving rise to the "unwarrantable failure" findings in each.
In this case that same event, a downed line curtain, was used as the "unwarrantable failure" for both the underlying 104(d)(1) citation and the 104(d)(1) order.
As a result of those reservations, the Government moved to amend the 104(d)(1) order at issue in this case, that is, Order No. 692095, to a 104(a) citation.
Westmoreland thereafter requested to withdraw its contest of
~404 the new section 104(a) citation. Under the circumstances, I see no reason not to accept that request. The contest is accordingly dismissed and the proceeding terminated.

Gary Melick
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ (FOOTNOTES START HERE.)

~FOOTNOTE_ONE
1 This order was issued under the provisions of section 104(d)(1) of the Act. That section reads as follows:

"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by the unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated."

~FOOTNOTE_TWO
2 Section 104(a) reads in part as follows:

"If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator."