Austin Powder Company

Plain-English summary

The Commission had previously vacated and remanded an ALJ decision concerning whether a citation should be treated as a section 104(d)(1) order or a section 104(a) citation. On remand, the ALJ removed the unwarrantable-failure finding but kept the penalty unchanged. Austin Powder Company and Bruce Eaton sought further review of that decision. The Commission granted the petition for discretionary review, leaving the remaining issues for later decision.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(d)(1); 30 U.S.C. § 823(c)
• Outcome: The petition for discretionary review was granted. The order did not decide the remaining merits issues.
• Key point: The Commission accepted further review of the citation designation and related penalty question after the ALJ’s remand decision.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                           January 24, 1997
                                   :
                      SECRETARY OF LABOR,:
                     MINE SAFETY AND HEALTH:
                      ADMINISTRATION (MSHA):
                                   :
                                         v.:
                                   :
                    AUSTIN POWDER COMPANY :
                :          Docket Nos. YORK 95-57-M
         SECRETARY OF LABOR,:                  YORK 96-13-M
                      MINE SAFETY AND HEALTH:
                      ADMINISTRATION (MSHA):
                                   :
                                         v.:
                                   :
                          BRUCE EATON :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners

                             DIRECTION FOR REVIEW

BY THE COMMISSION:

    This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

' 801 et seq. (1994) (AMine Act@ or AAct@). On October 31, 1996, Administrative Law Judge
Paul Merlin affirmed Citation No. 4424405 under section 104(d)(1), 30 U.S.C. ' 814(d)(1) of
the Act. 18 FMSHRC 1878, 1889. On December 10, 1996, the Commission granted in part the
joint petition for discretionary review filed by Austin Powder Company and Bruce Eaton. The
Commission agreed to review the issue of whether the judge erred by affirming the citation as
one issued under section 104(d)(1) of the Act.

    On December 12, 1996, the Commission issued its decision finding that the judge failed

to take into account the Secretary=s modification of the citation. The judge=s decision was
vacated and the matter was remanded to the judge to determine the proper designation of the
citation and whether the penalty should therefore be reduced.
On December 16, 1996, the judge issued a decision on remand wherein he deleted the

1
Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. ' 823(c), this panel of three Commissioners has been designated to exercise the powers
of the Commission.

Page 2

unwarrantable failure finding and affirmed the citation under section 104(a). He did not modify
his penalty assessment because he continued to find very high negligence.

    On December 19, 1996, Austin Powder Company and Bruce Eaton filed a petition and

motion seeking reconsideration of the Commission=s decision to deny review of the remaining
issues raised in their original November 27, 1996 petition for discretionary review.
Subsequently, on December 20, 1996, petitioners also filed a petition for discretionary review of
the December 16, 1996 decision on remand. That petition incorporates the essential assignments
of error contained in both the November 27, 1996 petition for discretionary review and the
petition and motion filed on December 19, 1996.

  Upon consideration of the foregoing, we grant the petition for discretionary review filed

on December 20, 1996.

2
The December 19, 1996, petition and motion, which requests substantially the same
relief as the subject petition for discretionary review, is moot.