Cathedral Bluffs Shale Oil

Plain-English summary

This civil-penalty case returned to the Commission after the D.C. Circuit reversed an earlier Commission decision involving a mandatory safety violation committed by Cathedral Bluffs' independent contractor. The court held that the Commission had improperly treated the Secretary's enforcement guidelines as binding regulations that restricted enforcement discretion. The Commission remanded the case to the ALJ to determine Occidental's liability for the contractor's violation in light of the court's opinion.

Decision snapshot

• Cited standards: None stated in the release
• Outcome: The matter was remanded to the ALJ to determine Occidental's liability.
• Key point: The Secretary's enforcement guidelines were policy statements, not binding regulations that the Commission could require the Secretary to follow strictly.

Full text (FMSHRC public release)

CCASE:
MSHA V. CATHEDRAL BLUFFS SHALE OIL
DDATE:
19861105
TTEXT:

              FMSHRC-WDC
              NOV 5, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.              Docket No. WEST 81-186-M

CATHEDRAL BLUFFS SHALE OIL
COMPANY

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners

               ORDER

BY THE COMMISSION:

This civil penalty case is before us on remand from the
U.S. Court of Appeals for the District of Columbia Circuit.
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir.
1986). At issue is the liability of a production-operator for a
violation of a mandatory safety standard committed by its
independent contractor.

Cathedral Bluffs Shale Oil Company is a partnership between

Occidental Shale Oil Co. ("Occidental") and Tenneco Shale Oil Co.
Occidental contracted with the Gilbert Corporation ("Gilbert") to
perform certain construction work at a mine at which Occidental
is the operating partner. During an inspection of the mine, an
inspector from the Department of Labor's Mine Safety and Health
Administration cited Occidental for a violation of a mandatory
safety standard committed by Gilbert. Occidental contested the
citation and the civil penalty proposed by the Secretary. (Gilbert
also was issued a citation for the same violation, but chose to
pay the penalty instead of contesting.) Following a hearing on the
merits, Commission Administrative Law Judge John J. Morris held the
Commission's decision in Phillips Uranium Corp., 4 FMSHRC 549 (April

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1982), to be "dispositive", and, "on the authority of Phillips", he
vacated the citation. 4 FMSHRC 902 (May 1982)(ALJ).

On review, the Commission agreed with the judge's result.
However, the Commission concluded that the judge had read Phillips
too broadly and had misapplied it as directly controlling the
disposition of the case. 6 FMSHRC 1871 (August 1984). The
Commission noted that prior to

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citing Occidental for the independent contractor's violation, the
Secretary published enforcement guidelines articulating his policy
for issuing citations and orders when violations of the Act and
mandatory safety and health standards are committed by independent
contractors. The Commission concluded that "[T]he appropriate
inquiry is whether the record reflects proper application of the
Secretary's ... independent contractor enforcement policy." 6 FMSHRC
at 1873. Holding that the record did not support a conclusion that
the Secretary acted within his enforcement guidelines when he cited
Occidental, the Commission affirmed the dismissal of the citation.
6 FMSHRC at 1876-77.

 The Secretary appealed, and the court concluded that the

Commission improperly viewed the Secretary's enforcement guidelines
as a "'legislative (i.e., substantive) rule ... which restricts his
enforcement discretion.'" Cathedral Bluffs Shale Oil Co., supra,
796 F.2d at 537. The court stated:

          Because the Commission improperly regarded
 the Secretary's general statement of his enforcement
 policy as a binding regulation which the Secretary
 was required strictly to observe, its decision
 dismissing the citation of Occidental must be
 reversed and remanded for further action consistent
 with this opinion.

796 F.2d at 539.

 Accordingly, the matter is remanded to the administrative

law judge to determine the liability of Occidental for the violation
of its independent contractor in light of the court's opinion. 1/

               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


               James A. Lastowka, Commissioner


             L. Clair Nelson, Commissioner

1/ Chairman Ford did not participate in the consideration or

Page 4

disposition of this matter.

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Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

James M. Day, Esq.
G. Lindsay Simmons, Esq.
Cotten, Day & Doyle
1899 L Street, N.W.
Suite 1200
Washington, D.C. 20036

Administrative Law Judge John Morris
Federal Mine Safety and Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204