FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

February 28, 2012

Appearances:              Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois, for Petitioner

Jason W. Hardin, Esq., and Mark E. Kittrell, Esq., Salt Lake City, Utah, for Respondent

Before:                        Judge McCarthy

STAY ORDER

            This case is before me on a petition for assessment of civil penalties filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against American Coal Company, Inc. (“American Coal” or “Respondent”), pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”).

            This case involves two section 104(d)(2) orders issued to Respondent, American Coal Company ("American Coal"), for alleged violations of 30 C.F.R. 75.400 concerning float coal dust and loose coal accumulations. Both orders were assessed as “repeated” “flagrant” penalties. A hearing was held on August 23-24, 2011 in Evansville, Indiana. The parties introduced testimony and documentary evidence, and witnesses were sequestered. On October 19, 2011, the parties filed a Joint Motion for Extension of Time to File Post-Trial Briefs. I granted an extension of the briefing period until November 18, 2011. Thereafter, Reply Briefs were filed by the parties on December 2, 2011.

            Recently, during the drafting of my decision, the Commission granted interlocutory review on the issue of whether a violation not deemed attributable to reckless conduct may be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history of prior similar violations. See Secretary of Labor v. Conshur Mining, LLC, Docket Nos. KENT 2008-562 and KENT 2008-762, Order dated February 15, 2012 (Attachment A). The instant matter presents the same issue of first impression, i.e., what is meant by a “repeated” “flagrant” violation. Accordingly, I conclude that it is not an efficient use of judicial resources to decide this matter at this time. Rather, I deem it prudent to stay this matter for six months or until the Commission decides Conshur Mining, whichever occurs sooner. At that time, I will revisit the stay or ask the parties to address whether a supplemental hearing or additional briefing is warranted in light of any Commission decision in Conshur Mining.

/s/ Thomas P. McCarthy

Thomas P. McCarthy                                                                                                             

Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Room 844, Chicago, Illinois, 60604

Jason W. Hardin, Esq., and Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Salt Lake City, Utah, 84111

                                                                                                            Attachment A

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 15, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006). On January 19, 2012, Administrative Law Judge Jerold Feldman issued a Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76(a)(1)(i). In his order, the judge certified for interlocutory review by the Commission his ruling in his Order of November 28, 2011, that a violation that is not attributable to reckless conduct may not be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history of prior similar violations. Unpublished Order at 2-3 (Jan. 19, 2012).

            Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R.

§ 2700.76(a).

            Upon consideration of the judge’s certification, we hereby grant review of the judge’s order of November 28, 2011, with regard to the issue of whether a violation not deemed attributable to reckless conduct may be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history of prior similar violations. Conshor Mining, LLC and the Secretary of Labor are hereby ordered to file initial briefs on or before 30 days from the date of this order. Response briefs by both parties will be due 30 days following service of the last initial brief. Initial briefs shall not exceed 35 pages; response briefs shall not exceed 25 pages. Reply briefs will not be filed. 

/s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Michael F. Duffy                                                                                         

Michael F. Duffy, Commissioner

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Robert F. Cohen, Jr.

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

Patrick K. Nakamura, Commissioner

Distribution

Jonathan R. Ellis, Esq.

Steptoe & Johnson, PLLC

Eighth Floor, Bank One Center

P.O. Box 1588

Charleston, WV 25326-1588

Jeffrey K. Phillips, Esq.

Steptoe & Johnson, PLLC

1010 Monarch Street, Suite 250

Lexington, KY 40591-0810

Christian P. Barber, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021