Medicine Bow Coal Company

Plain-English summary

Medicine Bow Coal sought an expedited hearing in two contest proceedings involving a citation under 30 C.F.R. § 75.807 and an order or citation under 30 C.F.R. § 75.517. Judge John J. Morris found that the operator had not shown the criteria required for expedited relief. He denied the motion to expedite. The order did not decide whether either enforcement document was valid.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.807 and 75.517
• Outcome: The motion for an expedited hearing was denied.
• Key point: A continuing possibility of future enforcement orders, without the required statutory showing, does not establish entitlement to an expedited hearing.

Full text (FMSHRC public release)

CCASE:
MEDICINE BOW COAL V. SOL (MSHA)
DDATE:
19900313
TTEXT:

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

MEDICINE BOW COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 90-117-R
v. Citation No. 3241007; 1/17/90

SECRETARY OF LABOR, Docket No. WEST 90-123-R
MINE SAFETY AND HEALTH Citation No. 3295756; 2/13/90
ADMINISTRATION (MSHA),
RESPONDENT Pilot Butte Mine
Mine I.D. No. 48-01012

                            ORDER

 These cases arose under the Federal Mine Safety and Health

Act of 1977, 30 U.S.C. 801 et seq.

 Contestant seeks an expedited hearing. The Secretary

opposes.

 In WEST 90-117-R the Secretary, pursuant to Section

104(d)(1), issued Citation No. 3241007 on January 17, 1990. The
citation alleges a violation of 30 C.F.R. 75.807. The notice of
contest was docketed with the Commission on February 20, 1990.

 In WEST 90-123-R the Secretary, pursuant to Section 104(d)

(1), issued Order No. 3295756 on February 13, 1990. The citation
alleges a violation of 30 C.F.R. 75.517. The notice of contest
was docketed with the Commission on February 28, 1990.

 As a grounds for its motion Contestant states it is subject

to a continuing possibility of orders issued pursuant to Section
104(d) of the Act despite its belief that the citation and order
were not properly issued pursuant to the Act.

                         Discussion

 Portions of the Mine Act, and Commission Rule 52, 29 C.F.R.

2700.521 deal with expedited hearings. These section
should be considered.

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As a threshold matter: Section 107(a)2 and its subparts deal
with imminent danger orders and withdrawal notices issued under
section 107. Subpart (e)3 addresses a hearing before the
Commission. The subpart provides as follows:

      "(e)(i) Any operator notified of an order
    under this section or any representative of miners
    notified of the issuance, modification, or termin-
    ation of such an order may apply to the Commission
    within 30 days of such notification for reinstate-
    ment, modification or vacation of such order. The
    Commission shall forthwith afford an opportunity
    for a hearing (in accordance with section 554 of
    title 5, United States Code, but without regard to
    subsection (a)(3) of such section) and thereafter
    shall issue an order, based upon findings of fact,
    vacating, affirming, modifying, or terminating the
    Secretary's order. The Commission and the courts
    may not grant temporary relief from the issuance
    of any order under subsection (a).

           (2) The Commission shall take whatever
    action is necessary to expedite proceedings this
    subsection."

  The enforcement documents involved in these cases were not

issued under section 107 of the Act but under section 104.
Accordingly, it is necessary to look to other portions of the
Act.4

 The controlling portion of the Act is found in section 105

(a)(B)(2) which provides as follows:

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"(2) As applicant may file with the Com-
mission 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 together with a detailed state-
ment 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. The Commission shall provide a pro-
     cedure for expedited consideration of applications
     for temporary relief under this paragraph.

 In the instant cases contestant's sole basis for an

expedited hearing is that it "is subject to a continuing
possibility of the issuance of orders pursuant to Section 104(d)
of the Act." However, Contestant's position is not unique. Every
mine operator is subject to the "possibility" of the issuance of
"104(a)" orders. In addition, these cases both involve 104(d)
orders and contestant has failed to allege that it is within the
criteria required by subparagraphs (A), (B) and (C) of
105(a)(B)(2).

 For the foregoing reasons contestant's motion to expedite is

denied.

                                 John J. Morris
                                 Administrative Law Judge

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FOOTNOTES START HERE

 1. The Commission rule broadly addresses expedited hearings

but it does not consider appeals of 104(d) orders.

   2. 30 U.S.C.   817.

   3. 30 U.S.C.   817(e).

 4. On March 2, 1990, in unrelated cases, Wyoming Fuel

Company, WEST 90-112-R the judge ruled contestant therein was
entitled to an expedited hearing. However, Wyoming Fuel dealt
with an order issued under Section 107(a) of the Act.