Mid-Continent Resources, Inc.

Plain-English summary

Mid-Continent Resources wanted to present evidence that MSHA's enforcement documents reflected a pattern of harassment and enforcement abuse. The Secretary asked the judge to exclude that evidence and evidence about whether MSHA followed its own penalty-proposal regulations. Judge Michael A. Lasher, Jr. adopted the reasoning of an earlier order and held that the Commission and its judges had no jurisdiction to hear the alleged abuse issue. He granted the motion in limine and excluded the identified evidence from the scheduled hearings.

Decision snapshot

• Cited standards: None stated in the order.
• Outcome: The Secretary's motion in limine was granted, and specified evidence was excluded from the four proceedings.
• Key point: The ALJ ruled that alleged abuse of discretion by MSHA in enforcement was outside the Commission's jurisdiction.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MID-CONTINENT RESOURCES
DDATE:
19890104
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-121
PETITIONER A.C. No. 05-00301-03629

      v.                           Docket No. WEST 88-122
                                   A.C. No. 05-00301-03630

MID-CONTINENT RESOURCES,
INC., Docket No. WEST 88-123
RESPONDENT A.C. No. 05-00469-03642

                                   Docket No. WEST 88-124
                                   A.C. No. 05-00469-03643

                                   Dutch Creek No. 1 and No. 2
                                     Mines

           ORDER GRANTING SECRETARY'S MOTION

 Respondent, Mid-Continent, has indicated, in these and other

proceedings, that it wishes to establish by evidence, including
statistical data, that the enforcement documents (Orders and
Citations) issued by the Secretary are examples of and the
products "of a pattern of harassment and enforcement abuse by
MSHA directed at Mid-Continent."(FOOTNOTE 1) This issue is for
convenience being referred to as the "abuse" issue.

 Petitioner, the Secretary, in a Motion in Limine filed on

November 29, 1988, seeks to have an order issued prohibiting
Respondent from submitting evidence on both the "abuse" issue and
on the issue relating to its alleged failure to follow its own
regulations in proposing penalties. Both parties have submitted
briefs in support of their positions.

 In Docket No. WEST 89-3-R, Judge John J. Morris determined

that the Commission does not have jurisdiction to review alleged
abuse of discretion by the Secretary in enforcing the Mine Safety
Act at Respondent's Dutch Creek Mine and granted the Secretary's
motion to dismiss Respondent's "broad allegation of alleged
abuse. . . ". Having carefully considered the arguments and
authorities presented by the parties on this issue. I am in full
accord with the views and holdings of Judge Morris expressed in

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his Order dated December 22, 1988, in Docket No. WEST 89-3-R, and
such are fully incorporated herein by reference as an integral
part of my decision here. It is specifically concluded that the
Commission and its judges have no jurisdiction to hear the
"abuse" issue. Evidence bearing on this issue and subject matter
will thus be deemed irrelevant and excluded at the evidentiary
hearings to be held in the four subject proceedings.

 With respect to the allegation that MSHA did not follow its

regulations in proposing penalties for the alleged violations, it
is first noted that Respondent, at the prehearing conference,
indicated that it did not desire to have penalty assessments sent
back to MSHA's penalty assessment office for reassessment
(Transcript of Prehearing Conference, p. 66). One of the purposes
of the de novo formal hearings scheduled in these matters is to
develop a record with respect to the various mandatory penalty
criteria which are to be considered by the Judge and Commission
in the event a violation is established.

 Respondent also argues (at page 8 of its brief) that the

Secretary's failure to follow her own regulations "is a further
indication of abuse . . . ". Since I have previously determined
the Secretary's position with respect to the lack of jurisdiction
to hear the "abuse" issue is meritorious, this argument of
Respondent is rejected. Evidence on this issue and subject matter
will also be excluded at the evidentiary hearings in these
proceedings.

                             Michael A. Lasher, Jr.
                             Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. In a preliminary hearing held in these four proceedings
in Denver on November 2, 1988, Respondent also indicated its
intent to establish that the Secretary did not follow her own
regulations in proposing penalties for the alleged violations.