Old Ben Coal Company (ALJ decision, July 3, 1980)

Plain-English summary

Old Ben Coal Company sought review of a December 1974 mine withdrawal order. It limited its challenge to the claim that an earlier notice and withdrawal order were unlawful and could not support the later order. The parties submitted the matter on their pleadings without an evidentiary hearing. After the Commission upheld the underlying order in a separate proceeding, Chief Judge James A. Broderick affirmed the December 1974 order and dismissed Old Ben's application. This decision assesses no monetary penalty.

Decision snapshot

• Cited standards: No specific mine safety standard is cited; the decision discusses section 104(c)(1) of the former Mine Act.
• Outcome: Withdrawal Order No. 1 LDC affirmed; application for review dismissed. No penalty assessed.
• Key point: The separate Commission ruling upholding the underlying withdrawal order defeated the only challenge Old Ben preserved in this proceeding.

Full text (FMSHRC public release)

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

3 JUL 1980

OLD BEN COAL COMPANY,
: Application for Review
Applicant :
: Docket No. VINC 75-313
v. :
: Mine No. 21
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
(formerly mining enforcement :
and safety administration), :
Respondent :

DECISION

Before: Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE

This proceeding was one of four similar proceedings in which the parties waived their rights to an evidentiary hearing and sub- mitted the cases for decision on the basis of the pleadings. The Application was limited by applicant's "partial withdrawal of issues" filed May 20, 1976, to its contention that "the underlying notice of violation and order of withdrawal issued pursuant to section 104(c)(1) of the Act were unlawfully issued and thus provide no basis for the issuance of the subject order of withdrawal * * *."

Because the underlying notice and withdrawal orders were challenged in a proceeding then pending before the Board of Mine Operations Appeals (which came before the Commission under sec- tion 301 of the Federal Mine Safety and Health Amendments Act), the case was continued by order of July 25, 1977.

COMMISSION DECISION

On June 2, 1980, the Commission issued its decision which upheld my decision of July 16, 1975, and affirmed the challenged withdrawal orders, including Order of Withdrawal No. 1 MK issued October 21, 1974, which is the order "underlying" the withdrawal order under review herein.

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Based upon the Commission decision, I conclude that the under- lying notice and order were validly issued. Therefore, the order reviewed herein, being Order No. 1 LDC, December 27, 1974, was validly issued, and must be affirmed.

ORDER

It is ordered that Order of Withdrawal No. 1 LDC, December 27, 1974, is AFFIRMED, and the application for review is DISMISSED.

James A. Broderick
Chief Administrative Law Judge

Distribution:

Edmund J. Moriarty, Esq., Old Ben Coal Company, 125 So. Wacker Dr., Chicago, IL 60606 (Certified Mail)

Michael V. Durkin, Esq., Trial Attorney, Office of the Solicitor of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

Assistant Administration, MSHA, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

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