Southern Minerals, Inc., True Energy Coal Sales, Inc., and Fire Creek, Inc.

Plain-English summary

Southern Minerals, True Energy Coal Sales, and Fire Creek faced contests involving 102 citations and orders and proposed penalties exceeding half a million dollars at the Fire Creek No. 1 Mine. Judge David F. Barbour denied a motion seeking to limit evidence about the Secretary's penalty criteria under 30 C.F.R. Part 100, explaining that penalty issues would be decided de novo at trial. He also denied motions to continue the hearing while the Commission considered related operator-status issues, finding that delay could make the older allegations harder to prove. Finally, he declined to revise the prior dismissal of True Energy, leaving that company out of the merits hearing. These orders addressed procedure and evidence and did not set a civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 100
• Outcome: The motion in limine, motions for continuance, and motion to revise the prior dismissal were denied.
• Key point: An FMSHRC ALJ evaluates civil-penalty evidence de novo, and the judge declined to delay the hearing or restore a party already dismissed from the proceeding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

                        June 3, 1996

SOUTHERN MINERALS, INC., : CONTEST PROCEEDINGS
TRUE ENERGY COAL SALES, INC., : Docket Nos. WEVA 92-15-R
and FIRE CREEK, INC. : through WEVA 92-116-R
Contestants :
v. : Fire Creek No. 1 Mine
: Mine ID 46-07512
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE AND SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. WEVA 92-786
Petitioner : through WEVA 92-791
v. :
: Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC., :
TRUE ENERGY COAL SALES, INC., :
and FIRE CREEK, INC., :
Respondents :

                       ORDER DENYING
                     MOTION IN LIMINE

 The Respondent=s motion to limit application of the penalty

assessment criteria published in 30 C.F.R. Part 100, is DENIED.
At trial the issue of the amount of any civil penalty
assessed is de novo before the judge, and the judge is not bound
by the Secretary=s interpretation of Part 100 and the civil
penalty criteria as set for in Part 100 (Yougliogheny & Ohio Coal
Co., 9 FMSHRC 673, 678-679 (1987); Sellersburg Stone Co., 5
FMSHRC 287 (March 1983), aff=d 737 F.2d 1147 (7R Cir. 1984)).
Consequently, I will admit any evidence relevant to the statutory
civil penalty criteria and hear the parties= arguments regarding
the proper interpretation and application of such evidence to the
criteria.

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                                    David F. Barbour
                                    Administrative Law Judge
  FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

                        June 3, 1996

SOUTHERN MINERALS, INC., : CONTEST PROCEEDINGS
TRUE ENERGY COAL SALES, INC., : Docket Nos. WEVA 92-15-R
and FIRE CREEK, INC. : through WEVA 92-116-R
Contestants :
v. : Fire Creek No. 1 Mine
: Mine ID 46-07512
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE AND SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. WEVA 92-786
Petitioner : through WEVA 92-791
v. :
: Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC., :
TRUE ENERGY COAL SALES, INC., :
FIRE CREEK, INC., :
Respondents :

        ORDER DENYING SECRETARY=S AND RESPONDENTS=
                 MOTIONS FOR CONTINUANCE

 A hearing in these proceedings is scheduled to commence on

July 15, 1996. The Secretary=s counsel has moved for a
continuance. She has a previously scheduled hearing commencing
on the same date. Counsel for the Respondents likewise has moved
for a continuance. Counsel notes that the matter of Berwind
Natural Resources, Corp., et al., 18 FMSHRC 202 (February 1996),
presents many of the same issues regarding operator liability
that are attendant in these proceedings, albeit in a slightly
different context.

 In partial decision issued on December 15, 1996, I ruled

that True Energy Coal Sales, Inc., was not an operator and I

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dismissed the proceedings with respect to True Energy (17 FMSHRC
2191, 2217). I held further that Southern Minerals, Inc., was

an operator, and I ordered the parties to proceed to hearing on
the merits of the cases with respect to Southern Minerals (17
FMSHRC at 2217-2218). The Commission declined to review the
partial decision. The Respondents assert that if these
proceedings are tried before the Commission decides Berwind, the
parties will be burdened by expending significant time and money
trying these cases against a legal standard for determining
operator status that the Commission may change; or, that the
Berwind decision may obviate the need for trying the cases at
all. By continuing the cases to allow the law to clarify, the
burden and expense to the parties will be lessened.

 I am sympathetic to the Respondents= desire to lessen the

burden and expense of trial. These proceedings involve aggregate
proposed civil penalties of more than one half million dollars
and the contests of 102 citations and orders. In another motion,
counsel for the Secretary estimates that a trial will last at
least four weeks, and I conclude that is each and every alleged
violation is contested, that estimate may be correct.

 However, putting the trial off until the Commission issues a

decision at some indefinite future time -- a decision that
ultimately may be appealed to a United States Court of Appeals
only delays what may well be inevitable. Without prejudging the
matter, I believe that it is more likely the Berwind decision
will warrant going forward with a trial on the merits than that
it will obviate the need for a trial. If I am correct, a
continuance at this time will make the allegations, which are
already among the oldest on the Commission=s docket, more stale
and less susceptible to proof when the hearings finally are
reconvened.

 Balancing these factors, I conclude that the hearings on

these proceedings should go forward as soon as possible.
ACCORDINGLY, I decline to continue these matters pending the
Commission=s Berwind decision. Given counsel for the Secretary=s
scheduling conflict, I am prepared to reschedule the proceedings
to commence either on July 30, 1996, or August 6, 1996 but no
later. I request counsel to advise me at the June 6, 1996,
prehearing conference which date is preferable.

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                             David F. Barbour
                             Administrative Law Judge




  FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041

                        June 3, 1996

SOUTHERN MINERALS, INC., : CONTEST PROCEEDINGS
TRUE ENERGY COAL SALES, INC., : Docket Nos. WEVA 92-15-R
and FIRE CREEK, INC. : through WEVA 92-116-R
Contestants :
v. : Fire Creek No. 1 Mine
: Mine ID 46-07512
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE AND SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. WEVA 92-786
Petitioner : through WEVA 92-791
v. :
: Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC., :
TRUE ENERGY COAL SALES, INC., :
and FIRE CREEK, INC., :
Respondents :

                      ORDER DENYING
         THE SECRETARY=S MOTION TO REVISE ORDER,
         DISMISSING TRUE ENERGY COAL SALES, INC.

 In a partial decision issued on December 15, 1995, I ruled

that True Energy Coal Sales, Inc. (ATrue Energy@) was not an
operator, and I dismissed the proceedings with respect to True
Energy (17 FMSHRC 2191, 2217). I held further that Southern
Minerals, Inc. (ASouthern Minerals@) was an operator, and I

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ordered the parties to proceed to a hearing on the merits of the
cases with respect to Southern Minerals (17 FMSHRC at 2217-2218).
On January 22, 1996, the Commission declined review of the
partial decision because I did not expressly direct that the
dismissal Abe entered as a final decision@ (18 FMSHRC 1) (quoting
Federal Rule of Civil Procedure 54(b))).

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 The Secretary has moved for the entry of an order revising

the partial decision of December 15, 1996, by deleting the
dismissal of True Energy and thus allowing True Energy to
participate in the forthcoming hearing. According to the
Secretary, if the partial decision is not revised, the Commission
eventually may determine True Energy is an operator and the
Secretary may be required to relitigate these proceedings against
True Energy, a use of his resources that the Secretary asserts
would be wasteful. The Respondents oppose the motion, noting
that True Energy already has been dismissed as a party.

 While I agree with the Secretary that the present posture of

these proceedings permits me to revise the order dismissing True
Energy, I decline to do so. If the cases go forward in their
current posture, the merits of the alleged violations will be
decided. Thus, if True Energy ultimately is found to be an
operator, the Secretary will not have to relitigate whether the
violations occurred, but rather will have to litigate only the
civil penalty aspects of the violations with regard to True
Energy.

 On the other hand, if I grant the Secretary=s motion, and

True Energy ultimately is found by the Commission not to be an
operator, the civil penalty aspects of the proceedings regarding
True Energy will have been tried for naught. Thus, I must
balance whether to try the civil penalty aspects regarding True
Energy now, or possibly later, or possibly not at all.

 It bears remembering that these cases involve more than one

half million dollars in proposed penalties, and the contests of
102 citations and orders. Simplification of the forthcoming
hearing is desirable. The issue of True Energy=s status as an
operator has been tried and decided. True Energy has been
removed as a participant and evidence regarding the civil penalty
criteria and True Energy has been removed from consideration. I
see little to be gained from revisiting the issue and enlarging
an already extensive record. The motion is DENIED.

                                 David F. Barbour
                                 Administrative Law Judge



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