Utah Power and Light Company

Plain-English summary

MSHA issued Utah Power and Light Company a citation and withdrawal order involving alleged combustible accumulations at its Cottonwood underground coal mine. After the ALJ modified the predicate order to a section 104(a) citation and upheld the later withdrawal order, Utah Power asked the Commission for temporary relief while seeking discretionary review. The Commission denied the application because section 105(b)(2) temporary relief is available for withdrawal orders, not for a section 104(a) citation with special findings. The Commission also held that the modification of the original order operated to Utah Power's benefit.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(a), 814(d)(1), and 815(b)(2), 30 C.F.R. § 75.400, and 29 C.F.R. §§ 2700.45 and 2700.46
• Outcome: Utah Power's application for temporary relief was denied.
• Key point: A section 104(a) citation with significant-and-substantial or unwarrantable-failure findings is still a citation and is outside the temporary-relief provision.

Full text (FMSHRC public release)

CCASE:
UTAH POWER & LIGHT V. MSHA
DDATE:
19890615
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             June 15, 1989

UTAH POWER AND LIGHT COMPANY,
MINING DIVISION

  v.             Docket No. WEST 89-161-R

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

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                ORDER

BY THE COMMISSION:

In this contest proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
(\"Mine Act\" or \"Act\"), Utah Power and Light Company, Mining
Division (\"UP&L\"), pursuant to the provisions of section 105(b)(2)
of the Mine Act and Commission Procedural Rules 45 and 46, has
filed with the Commission an Application for Temporary Relief from
an enforcement action taken against it by the Secretary of Labor. 1/
For the following reasons, we deny UP&L's

1/ Section 105(b)(2) of the Mine Act provides:

          An applicant may file with the Commission a
written request that the Commission grant temporary
relief from any modification or termination of any
order or from any order issued under section [104] of
this [Act] together with a detailed statement giving the
reasons for granting such relief. The Commission may
grant such relief under such conditions as it may

prescribe, if --

    (A) a hearing has been held in which all parties

were given an opportunity to be heard;

    (B) the applicant shows that there is substantial
 likelihood that the findings of the Commission will be
 favorable to the applicant; and
          (C) such relief will not adversely affect the
 health and safety of miners.

   No temporary relief shall be granted in the case of a

citation issued under subsection (a) or (f) of section [104] of
this [Act]. The Commission shall provide a procedure for expedited
consideration of applications for temporary relief under this
paragraph.

30 U.S.C. $ 815(b)(2).

Commission Procedural Rules 45 and 46 implement section
105(b)(2) of the Act and state:

45 Procedure.

         (a) When to file. An application for temporary
relief may be filed at any time before the issuance
of a final order in the proceeding to which the
application relates.
         (b) Statements in opposition. The parties
opposing the application shall file statements in
opposition within 3 days after receipt of the application.
         (c) Prior hearing required. Temporary relief
shall not be granted prior to a hearing.

46 Contents of application.

         (a) An application for temporary relief shall
contain: (1) A statement of the specific relief requested;
(2) a showing of substantial likelihood that the findings
and decision of the Judge or the Commission in the matters

to which the application relates will be favorable to the
applicant; and (3) a showing that such relief will not
adversely affect the health and safety of miners in the
affected mine.
         (b) An application for temporary relief may be
supported by affidavits or other evidentiary matter.

29 C.F.R. $$ 2700.45 & .46.

~954
Application.

Briefly, the relevant factual and procedural background is

as follows. On March 16, 1989, an inspector of the Department
of Labor's Mine Safety and Health Administration (\"MSHA\") issued to
UP&L at its Cottonwood underground coal mine a citation containing
significant and substantial and unwarrantable failure findings made
pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. $ 814(d)(1).
With this citation as a predicate, MSHA issued a 104(d)(1) order of withdrawal
at the same mine on March 20. -1989. The order alleges that
UP&L violated 30 C.F.R. $ 75.400, a mandatory safety standard
dealing with accumulation of combustibles, and also charges that
the violation was significant and substantial and resulted from
UP&L's unwarrantable failure to comply with the standard. The
order was terminated within an hour of issuance upon UP&L's abatement
of the alleged violative conditions. In separate proceedings, UP&L
challenged both alleged violations. The two proceedings were assigned
to Commission Administrative Law Judge John J. Morris.

In an expedited decision issued on April 12, 1989, Judge Morris

vacated the special finding of unwarrantable failure contained in the
March 16 citation, and modified the citation to one issued pursuant to
section 104(a) of the Mine Act, 30 U.S.C. $ 814(a). Utah Power and
Light Co., 11 FMSHRC 586 (April 1989)(ALJ). Neither party sought
review of that decision. In an expedited decision issued on April 24,
1989, Judge Morris upheld the cited violation and the validity of the
March 20 section 104(d)(1) withdrawal order. 11 FMSHRC 710 (April
1989)(ALJ). The April 24 decision makes no reference to the judge's
modification of the March 16 citation in his earlier decision.

 UP&L filed its Application for Temporary Relief with the

Commission on May 12, 1989. The Secretary filed an Opposition to
UP&L's Application for Temporary Relief and we permitted UP&L to
file a Reply to the Secretary's Opposition. UP&L also petitioned
the Commission for discretionary review of the judge's decision
challenging, inter alia, the judge s upholding of the special
finding of unwarrantable failure. On June 2, 1989, we granted UP&L's
petition for discretionary review.

In its Application for Temporary Relief, UP&L specifically

seeks relief from the finding of unwarrantable failure set forth
in the March 20 citation. It argues that, because the judge's
decision leaves intact the finding of unwarrantable failure, the
Cottonwood mine is exposed to closure under the 104(d) \"chain\" in the
event that unwarrantable failure allegations are made in subsequent
enforcement actions taken by the Secretary pending Commission review
of the judge's April 24 decision. Both UP&L and the Secretary agree
that, because of the judge's modification of the March 16 predicate
citation, the 104(d)(1) order in this matter should be deemed to be
modified by operation of law to a citation. UP&L App. 4-5; S. Opp.
3-4. See Consolidation Coal Co., 4 FMSHRC 1791, 1794-96 (October
1982). The Secretary argues in opposition that the express language
of 105(b)(2) of the Mine Act provides for temporary relief only from

orders issued pursuant to 104 and, because the order was modified to

a citation by operation of law, the Commission lacks jurisdiction to
grant the temporary relief requested. Further, the Secretary asserts
that relief under 105(b)(2) is obtainable only from unabated
withdrawal orders and the order in this case was abated within an
hour of its issuance. In reply, UP&L contends that the plain language
of 105(b)(2) also provides for relief from modifications of orders
issued under 104, which UP&L claims is the case here. UP&L also
argues that only citations issued under subsections (a) and (f) of
104 are expressly excluded from temporary relief under th

~956
language of 105(b)(2). According to UP&L, because the enforcement
action presently at issue is a \"104(d)(1) citation,\" resulting
from the modification of the original 104(d)(1) order, temporary
relief is not precluded by the terms of 105(b)(2).

We conclude that the plain language of 105(b)(2) requires

denial of UP&L's Application. Section 105(b)(2) sets forth the
conditions under which temporary relief may be granted under the
Act and Commission Procedural Rules 45 and 46 merely implement
this statutory provision. Section 105(b)(2) of the Act provides
for temporary relief from \"any modification or termination of any
order or from any order issued under section [104]\" of the Act,
and specifically states that \"[n]o temporary relief shall be
granted in the case of a citation issued under subsection (a) ...
of [104]\" of the Act. The legislative history of 105(b)(2)'s
nearly identical predecessor provision in the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. $ 801 et seq. (1976)
(amended 1977) (\"1969 Coal Act\"), indicates that Congress intended,
as the language of the Mine Act and the 1969 Coal Act clearly
reflects, that temporary relief lie only from withdrawal orders, not
from citations or from the equivalent \"notices of violation\" under the
1969 Coal Act. See Senate Subcommittee on Labor, Committee on Labor
and Public Welfare, 94th Cong., 1st Sess., 1 Legislative History of
the Federal Coal Mine Health and Safety Act of 1969, at 1603 (1975)
(\"1969 Coal Act Legis. Hist.\"). We recently made clear in denying a
request for section 105(b)(2) temporary relief that such relief
applies only to orders of withdrawal issued under section 104 of the
Act. Pennsylvania Electric Co., Docket No. PENN 88-227, Order at 1-2
(May 8, 1989).
Moreover, the enforcement action in question is, contrary to
UP&L's characterization, a citation issued pursuant to the authority
of 104(a) of the Act. As such, it is expressly excluded from the
reach of temporary relief. As discussed below, the commonly used
phrase \"section 104(d)(1) citation\" is merely a term of convenience
and does not indicate a separate basis for issuance of citations
independent from section 104(a).

Section 104(a) is the source of the Secretary's power to

issue citations for alleged violations of the Act. See, e.g.,
Nacco Mining Co., 9 FMSHRC 1541, 1545 & n. 6 (September 1987);
Consolidation Coal Co., 6 FMSHRC 189, 191-92 (February 1984).
Section 104(d)(1) states that if 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 an 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 the Act.\"
(Emphasis added). Thus, the statutory language makes clear that
\"significant and substantial\" and \"unwarrantable failure\"
determinations by MSHA inspectors constitute special findings that
are \"includ[ed]\" in any citation issued under the authority otherwise
conferred upon the Secretary by the Act.

~957
This view of the Act is reinforced by the legislative
history of section 104(a)'s predecessor provisions in the 1969
Coal Act, in which a key House Committee report explained that when
a \"representative [of the Secretary] finds a violation of a standard
and further finds that the violation is caused by an unwarrantable\n+failure on the part of the operator in complying with the particular
standard, he includes such additional finding in the notice [of
violation] issued under sub- section (b)\" [section 104(b) of the
1969 Coal Act essentially now is section 104(a) of the Mine Act].
H. Rep. No. 653. 91st Cong., 1st Sess. 8 (1969), reprinted in 1969
Coal Act Legis. Hist. 1038. This relationship between citations
issued pursuant to section 104(a) and the special findings provided
for in section 104(d) was also discussed in Consolidation Coal, supra,
6 FMSHRC at 191-92, in which we approved the inclusion of significant
and substantial findings in a citation issued under section 104(a).
Finally, in Nacco, supra, we expressly referred to a \"citation issued
with section 104(d) findings\" and explained that the term \"section
104(d) citation\" was used for convenience to distinguish it from a
section 104(a) citation not containing such findings. 9 FMSHRC
at 1545 n.6.

~958
Accordingly, we hold that the citation from which
temporary relief is sought by UP&L is a section 104(a) citation
with special findings and as such is not within the purview of
section 105(b)(2) relief. Accordingly, UP&L's Application for
Temporary Relief is denied. 2/

                 Ford B. Ford, Chairman

                 Richard V. Backley, Commissioner

                 Joyce A. Doyle, Commissioner

                 James A. Lastowka, Commissioner

                   L. Clair Nelson, Commissioner

2/ UP&L also argues that it may seek relief from the modification,
by operation of law, of the original section 104(d)(1) order to a
citation containing special findings. We disagree. This modification
operated to UP&L's benefit, not harm. Therefore, the need to consider
temporary relief from an order that is no longer extant is not
apparent. Further, we express no opinion as to the Secretary's
alternative assertion that temporary relief may be obtained only from
unabated orders. Similarly, we intimate no view at this time as to
whether temporary relief may lie from the effect of special findings
contained in section 104(d) orders.

~959
Distribution

Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204