Kingston Mining, Inc. v. Secretary of Labor

Plain-English summary

After a mobile coal-hauler accident, MSHA issued a mine-specific safeguard requiring cameras on Kingston Mining's battery-powered haulers and cable-powered shuttle cars. Kingston sought an expedited pre-enforcement hearing, while the Secretary moved to dismiss because MSHA had not yet issued a citation for violating the safeguard. Judge Jerold Feldman denied both motions and stayed the case. He reasoned that a technical citation with a minimal penalty and reasonable abatement time could give Kingston a contestable enforcement action without forcing the Commission to issue an advisory opinion about an unviolated safeguard. The order allowed Kingston to seek vacatur if MSHA did not issue a related citation by October 1, 2014.

Decision snapshot

• Governing authority: 30 C.F.R. §§ 75.1403, 75.1403-1(b); 30 U.S.C. § 874(b)
• Outcome: The dismissal and expedited-hearing motions were denied, and the contest was stayed pending a related citation.
• Key point: A safeguard dispute can be preserved while MSHA issues a contestable technical citation, avoiding premature pre-enforcement adjudication.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

July 31, 2014

KINGSTON MINING, INC.,

����������������������� �� Contestant

����������������������� v.

SECRETARY OF LABOR,

� MINE SAFETY AND HEALTH

� ADMINISTRATION (MSHA),

����������������������� �� Respondent

CONTEST PROCEEDING

Docket No. WEVA 2014-812-R

Safeguard No. 9001627; 03/12/2014

Mine: Kingston No. 2

Mine ID: 46-08632

����������� ����������������������������������������������������������� ��

Order Denying Secretary of Labor�s Motion

�to Dismiss SAFEGUARD CONTEST

Order DENYING CONTESTANT�S MOTION FOR EXPEDITED
HEARING

AND

STAY ORDER

Before: Judge Feldman

����������� This matter is before me based on a Notice of
Contest filed by Kingston Mining, Inc. (�Kingston�), regarding Safeguard No.
9001627 that was issued on March 12, 2014, by the Secretary of Labor
(�Secretary�) pursuant to section 314(b) of the Federal Mine Safety and Health
Act of 1977, as amended, 30 U.S.C. � 874(b) (2006) (�Mine Act�) or (�the Act�).[1]
On April 11, 2014, Kingston filed a motion seeking an expedited hearing of its safeguard
contest. Thereafter, on April 30, 2014, the Secretary filed both a Motion to
Dismiss Kingston�s contest and an opposition to Kingston�s request for an
expedited hearing.

Disposition of the parties� motions
has been held in abeyance to provide the Secretary with an opportunity to issue
a justiciable notice of violation of the subject safeguard. To date, the
Secretary has not issued a citation for the violation of the safeguard. Consequently,
for the reasons set forth below, both the Secretary�s Motion to Dismiss and Kingston�s
motion for an expedited hearing ARE DENIED. Kingston�s contest SHALL
BE STAYED pending the issuance of a citation that alleges a
violation of the subject safeguard.

I.                  
Background

Kingston operates two types of
mobile coal haulage equipment at its No. 2 mine: traditional coal haulers,
which are battery-powered; and shuttle cars, which are operated by trailing cables.
Mot. to Expedite at 2. Following a mobile coal hauler accident, the Mine Safety
and Health Administration (�MSHA�) concluded that camera systems must be
installed on both types of haulage equipment. Id. Consequently, on March
12, 2014, MSHA issued Safeguard No. 9001627 pursuant to section 75.1403,[2]
30 C.F.R. � 75.1403, which states:

A mobile coal hauler was involved in an
accident that injured a miner. The root cause of the accident was due to
inadequate vision. This is a safeguard requiring that all mobile coal haulage
equipment be equipped with a camera system that will provide adequate vision in
all required directions to insure the safety of all miners.

Id. at 1.

Kingston asserts that it will be
irreparably harmed and denied due process if it is obligated to install the
camera systems required by the safeguard before it is given the opportunity to
litigate the propriety of the safeguard in an expedited hearing. Mot. to
Expedite at 3. As previously noted, to date, MSHA has not issued a citation for
a violation of the safeguard.

In seeking to dismiss Kingston�s
contest, the Secretary argues that the Commission lacks jurisdiction to review
safeguard notices absent a relevant citation for an alleged violation of the
safeguard issued pursuant to section 75.1403-1(b). The Secretary has filed a
Motion to Dismiss Kingston�s contest and an opposition to Kingston�s request
for an expedited hearing.

II.               
Discussion

Section 104(a) of the Act
authorizes the Secretary to issue a citation for an alleged violation of the
Act, or any mandatory health or safety standard. 30 U.S.C. � 814(a). The
statutory authority in section 105(d), 30 U.S.C � 815(d), for the filing of
contests by mine operators is limited to those pertaining to the issuance of a
citation under section 104 of the Act. It is well settled that a safeguard
issued pursuant to section 314(b) of the Act is an interim mandatory safety
standard,[3]
the violation of which constitutes a mandatory safety standard contestable
under sections 104(a) and 105(d). Wolf Run Mining Co., 32 FMSHRC 1228,
1236 (Oct. 2010). While it is clear that the Commission has the authority to
adjudicate contests of citations for violations of safeguards, as noted by
Judge Steele, �[t]here is no explicit grant of authority in the Mine Act
empowering the Commission to consider the validity of safeguards� in the
absence of a citation issued for its violation. Elk Run Coal Co., 36
FMSHRC 805, 806 (Mar. 2014) (ALJ).

����������� In the instant matter, I am sensitive to Kingston�s
due process concerns. Kingston asserts that it will be irreparably harmed and
denied due process if it is obligated to install the camera systems required by
the safeguard before it is given the opportunity to litigate the propriety of
the safeguard in an expedited hearing. Mot. to Expedite at 3. Balancing the
limited authority in section 105(d) of the Act to challenge only
post-enforcement safeguards with a mine operator�s due process rights to challenge
a pre-enforcement safeguard is, essentially, a matter of first impression. However,
adherence to the terms of section 105(d) limiting contests to only post-enforcement
safeguard matters, while protecting a mine operator�s due process rights, may
be accomplished by utilizing procedures similar to those established for resolving
disputed provisions during the approval process for roof control or ventilation
plans.[4]

When mine operators and the
Secretary are unable to resolve disputed roof and ventilation plan provisions,
the Secretary issues a citation alleging a violation for operating without an
approved plan, sometimes referred to as a �technical citation,� so that the
operator can litigate the matter before the Commission, satisfying its due
process rights. Prairie State Generating Co., LLC, 35 FMSHRC 1985, 1985
n.1 (July 2013). Under such circumstances, a de minimis civil penalty can be
proposed along with a reasonable abatement period to allow disposition of the
validity of the �technical citation� in an expedited Commission proceeding.

This technical violation approach,
as it is used to resolve disputes over provisions in roof or ventilation plans,
can be utilized to satisfy Kingston�s contest of the subject safeguard. Following
this procedure, Kingston�s contest of the safeguard can be merged with any
subsequent relevant contest Kingston may file if a violation of the safeguard
is issued. Merger can be best accomplished by staying this matter pending potential
consolidation of any relevant future contest Kingston may file under section 105(d).
Under such circumstances, I trust that a de minimis penalty will be imposed, as
well as a reasonable abatement period to allow for litigation. The propriety of
a reasonable abatement period is evidenced by the fact that the Secretary has,
to date, not yet issued a violation of the subject safeguard. Consequently, the
Secretary�s Motion to Dismiss Kingston�s contest, as well as Kingston�s motion
for an expedited hearing, shall be denied in favor of staying this matter
pending consolidation with a contest of any citation alleging a relevant
violation of the safeguard.

����������� In staying this matter, I am cognizant of Judge
Steele�s thoughtful decision in Elk Run Coal Co. that there is a �close
nexus between a safeguard and a citation or order� that provides adequate
implied authority under section 105(d) to hear
pre-enforcement safeguard contests.� �36 FMSHRC 805, 807 (Mar. 2014) (ALJ
Steele). However, Judge Steele�s decision was primarily predicated on due
process concerns, which I have addressed above. Moreover,����� �I decline to
adopt Judge Steele�s approach as it may result in unintended and undesirable
consequences. Namely: (1) Adjudication of a pre-enforcement safeguard may
result in an advisory opinion if a citation for a violation of the safeguard is
never issued; and (2) the Commission�s jurisdiction to adjudicate a pre-enforcement
safeguard contest presents a controlling question of law that can only be
resolved, in the absence of a relevant citation, through interlocutory review,
a process that does not address the validity of the safeguard.�� �See 29
C.F.R. � 2700.76 (a)(1)(i).

ORDER

����������� In view of the above, it is ordered that the Secretary�s Motion to Dismiss
Kingston Mining, Inc.�s contest of Safeguard No. 9001627 IS DENIED.

����������� It is further
ordered that Kingston Mining, Inc.�s Motion for Expedited Hearing IS
DENIED.

����������� It is further
ordered that this contest proceeding is stayed pending consolidation with any relevant contest
of a citation for a violation of Safeguard No. 9001627 filed pursuant to
section 105(d) of the Act.

It is further ordered that the parties should file, with the
undersigned, a joint motion for consolidation and to lift this stay within
30 days of the docketing of any relevant 105(d) contest proceeding.

I will entertain a motion to vacate
Safeguard No. 9001627 by Kingston Mining, Inc. if a relevant citation for a
violation of the safeguard is not issued on or before October 1, 2014, approximately
seven months after the issuance of the subject safeguard.

����������� ����������� ����������� ����������� ����������� /s/
Jerold Feldman

Jerold Feldman

����������������������������������������������������������������������� Administrative
Law Judge

Distribution:

Jacob
M. Hargraves, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA,
1100 Wilson Boulevard, 22nd Floor, Arlington, VA 22209-2249

Arthur
M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

�����������

/acp

[1] Section 314(b) of the Mine Act authorizes the
Secretary to issue safeguards that require remedial actions �to minimize
hazards with respect to the transportation of men and materials� based on
consideration of the specific conditions at the particular mine. Southern
Ohio Coal Co., 14 FMSHRC 1, 7 (Jan. 1992).

[2] Section 75.1403 of the Secretary�s regulations
repeats verbatim the provisions of section 314(b) of the Act that address hazards
associated with the transportation of men and materials. The procedure for issuing
citations for safeguard violations under section 75.1403 is described as:

The
authorized representative of the Secretary shall in writing advise the operator
of a specific safeguard which is required pursuant to � 75.1403 and shall fix a
time in which the operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the time fixed and if it is
not maintained thereafter, a notice shall be issued to the operator pursuant to
section 104 of�� �the Act.

30 C.F.R. 75.1403-1(b).

[3] Section 3(l) of the Act defines �mandatory health or
safety standard� as �the interim mandatory health or safety standards
established by titles II and III of this Act, and the standards promulgated
pursuant to title I of this Act.� 30 U.S.C. � 802(l).

[4] Analogous to safeguards, roof or ventilation plans
are considered mandatory safety standards under section 104(a). Zeigler Coal
Co. v. Kleppe, 536 F.2d 398, 382 (D.C. Cir. 1976).