Ezel / Agency Decisions / WEVA 83-125-R

Kitt Energy Corporation v. Secretary of Labor (ALJ decision, January 16, 1985)

Kitt Energy Corporation v. Secretary of Labor (FMSHRC WEVA 83-125-R): Withdrawal order changed to section 104(d)(1) citation

Decision type
ALJ decision
Docket
WEVA 83-125-R
Decided
January 16, 1985
Presiding judge
William Fauver
Outcome
Modified
Precedential status
Final order, not precedent
Checked against source
2026-10-20
Cited standards
30 U.S.C. § 814(d)(1) 30 U.S.C. § 814(d)(2)
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 1985 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1985
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision on remand became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no further Commission review appears in the official index for this docket. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Commission sent Kitt Energy's contest back to Judge William Fauver for another look at the form of an MSHA enforcement action. The judge had previously changed a section 104(d)(2) withdrawal order into an ordinary section 104(a) citation. On remand, he accepted the Secretary's argument that it should instead be a section 104(d)(1) citation. He amended his earlier decision to find that the violations were significant and substantial and unwarrantable, and affirmed the citation as modified. This decision does not describe the underlying safety conditions or assess a penalty.

Decision snapshot

  • Cited provisions: Mine Act section 104(d)(1) and (d)(2), 30 U.S.C. § 814(d)(1) and (d)(2).
  • Outcome: Section 104(d)(2) order modified to a section 104(d)(1) citation and affirmed.
  • Key point: On remand, the judge changed the enforcement action to a section 104(d)(1) citation and added significant and substantial and unwarrantable findings.

Full text (FMSHRC public release)

CCASE:
KITT ENERGY V. SOL (MSHA)
DDATE:
19850116
TTEXT:
~110
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

KITT ENERGY CORPORATION,
CONTEST PROCEEDING
CONTESTANT
Docket No. WEVA 83-125-R
v. Order No. 2115977; 3/24/83

SECRETARY OF LABOR,
Kitt No. 1 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

DECISION ON REMAND

Appearances: Bronius K. Taoras, Esq., Kitt Energy Corp., Meadow Lands, Pennsylvania, for Contestant; Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Respondent. Before: Judge Fauver

On December 3, 1984, the Commission remanded this case to me "for further consideration and ruling in view of the arguments raised by the Secretary before the Commission."

The Secretary, in his Petition for Discretionary Review to the Commission, sought a ruling modifying my decision so as to convert the original section 104(d)(2) withdrawal order to a section 104(d)(1) citation instead of a section 104(a) citation.

For the reasons submitted in the Secretary's Petition, I believe the Secretary's position is well taken. I find that my decision should be amended: (1) to convert the original withdrawal order to a section 104(d)(1) citation and (2) to find that the violations cited in the modified section 104(d)(1) citation were "substantial and significant" and unwarrantable within the meaning of section 104(d) of the Act.

ORDER

WHEREFORE IT IS ORDERED that my decision of October 4, 1984, is AMENDED as follows:
~111

  1. Conclusion of Law No. 2 is AMENDED, in the last sentence, to
    change "section 104(a) citation" to read "section 104(d)(1) citation."

    1. The order in the decision is AMENDED to read as follows:

      "MSHA Order No. 2115977 is MODIFIED to change it from a
      section 104(d)(2) order into a section 104(d)(1)
      citation, including a finding that the violations
      charged were significant and substantial and
      unwarrantable. As so modified, this citation is
      AFFIRMED in all respects."

                             William Fauver
                       Administrative Law Judge

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