Marfork Coal Company, Inc. (ALJ decision, August 8, 2006)

Plain-English summary

The Secretary asked to stay 24 Marfork Coal citation contests until the related civil penalty case was docketed, and Marfork did not object. Judge Jerold Feldman granted the stay and required the parties to contact him after the penalty case was assigned so the matters could be consolidated for hearing. He declined to require operator status reports because no reports had been ordered. To avoid unnecessary expense on citations that might settle, the judge limited discovery to periods when the contests were no longer stayed.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.56(c); 30 U.S.C. § 815(d)
• Outcome: All 24 contests were stayed, no status reports were required, and discovery was suspended during the stay.
• Key point: Discovery may be paused while pre-penalty contests are stayed because the later penalty proposal may narrow or eliminate the disputes.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, D.C. 20001-2021

August 8, 2006

MARFORK COAL COMPANY, INC.,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Respondent

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CONTEST PROCEEDINGS

Docket No. WEVA 2006-707-R

Citation No. 7239942; 05/22/2006

Docket No. WEVA 2006-708-R

Citation No. 7239943; 05/22/2006
v
Docket No. WEVA 2006-709-R

Citation No. 7239946; 05/23/2006

White Queen

Mine ID 46-8297

Docket No. WEVA 2006-710-R

Citation No. 7253955; 05/22/2006

Brushy Eagle

Mine ID 46-8315

Docket No. WEVA 2006-711-R

Citation No. 7254891; 05/23/2006

River Fork Powellton #1

Mine ID 46-08914

Docket No. WEVA 2006-760-R

Citation No. 7257562;06/26/2006

Slip Ridge Cedar Grove Mine

Mine ID 46-09048

Docket No. WEVA 2006-752-R

Citation No. 7254904;06/07/2006

Docket No. WEVA 2006-753-R

Citation No. 7254905;06/07/2006

Docket No. WEVA 2006-754-R

Citation No. 7254907;06/07/2006

Docket No. WEVA 2006-755-R

Citation No. 7254911;06/12/2006

Docket No. WEVA 2006-756-R

Citation No. 7254912;06/12/2006

Docket No. WEVA 2006-757-R

Citation No. 7254915;06/12/2006

Docket No. WEVA 2006-758-R

Citation No. 7254917;06/14/2006

River Fork Powellton #1

Mine ID 46-08914

Docket No. WEVA 2006-770-R

Citation No. 7254922;06/26/2006

Docket No. WEVA 2006-771-R

Citation No. 7254928;06/26/2006

Docket No. WEVA 2006-772-R

Citation No. 7254939;06/26/2006

Docket No. WEVA 2006-773-R

Citation No. 7254930;06/26/2006

Docket No. WEVA 2006-774-R

Citation No. 7254931;06/26/2006

Docket No. WEVA 2006-775-R

Citation No. 7254932;06/26/2006

Docket No. WEVA 2006-776-R

Citation No. 7254933;06/26/2006

Docket No. WEVA 2006-777-R

Citation No. 7254935;06/26/2006

Docket No. WEVA 2006-778-R

Citation No. 7254937;06/26/2006

Marsh Fork Eagle Mine

Mine ID 46-08913

Docket No. WEVA 2006-791-R

Citation No. 7247599; 06/28/2006

Docket No. WEVA 2006-792-R

Citation No. 7247600; 06/28/2006

White Queen Mine

Mine ID 46-08297

STAY ORDER

AND

ORDER LIMITING DISCOVERY

The Secretary has filed a motion to stay the above contest matters pending the docketing and assignment of the related civil penalty case. The Contestant does not oppose the
Secretary's motion. Accordingly, in the interest of administrative efficiency, these proceedings ARE STAYED. IT IS ORDERED that the parties initiate a conference call with the undersigned within 21 days of the docketing and assignment of the pertinent civil penalty case to lift this stay and to schedule these matters for a consolidated hearing.

The Secretary, in her stay motion, requests that the operator should be ordered to provide periodic status reports concerning the progress of the related civil penalty matters. The Contestant opposes the Secretary's suggestion. This issue is moot as I have not ordered any status reports with respect to the progress of the Secretary's civil penalty proposal.

There are 24 contested citations in these proceedings. In instances where contests are stayed to await the Secretary's proposal of civil penalties, postponing discovery until the Secretary's proposal is presented to the operator facilitates settlement discussions and may .obviate the need for discovery on some or all of the citations in issue. In order to avoid the undue burden or expense that may result from needless discovery, pursuant to Commission
Rule 56(c), 29 C.F.R. § 2700.56(c), IT IS ORDERED that discovery shall be limited to periods when these matters are no longer on stay.1

Jerold Feldman

Administrative Law Judge

Distribution (Certified Mail)

Carol Ann Marunich, Esq., Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP,
2604 Cranberry Square, Morgantown, WV 26508

Mark R. Malecki, Esq., Glenn M. Loos, Esq., Daniel M. Barish, Esq., Francine A. Serafin, Esq., Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

/mh

[1] An operator served with a citation alleging a violation of the Mine Act, or alleging a violation of a mandatory safety standard that has been abated, may immediately contest the citation under section 105(d) without waiting for notification of the proposed penalty assessment. 30 C.F.R. 815(d). In such cases, section 105(d) provides that "the Commission shall afford an opportunity for a hearing." An operator may have an interest in an early hearing, such as in cases where continued abatement is expensive, or where the validity of the citation or order impacts
on an operator's continued exposure to 104(d) withdrawal sanctions. Energy Fuels Corporation, 1 FMSHRC 299, 307-08 (May 1979). Thus, the purpose of a contest proceeding is to adjudicate
the validity of a citation without waiting for the Secretary's proposed civil penalty. Absent a reason to believe that an operator has a need for an early hearing, contests should not be filed solely for the initiation of discovery when, as in this case, the operator elects to forgo its right to an early hearing by acquiescing to a stay.