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

November 21, 2012

ORDER ACCEPTING APPEARANCE

ORDER DENYING MOTION TO APPROVE SETTLEMENT

Before:            Judge Lesnick

            This case is before me upon a petition for assessment of the civil penalties filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).

            The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted to represent the Secretary. Cyprus Emerald Resources Corp., 16 FMSHRC 2359 (Nov. 1994).

            The CLR has filed a motion to approve settlement. The CLR states that Citation Nos. 8611198 and 8611201 have been vacated. The Secretary’s discretion to vacate a citation or order is not subject to review. RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 1993).

            The CLR also requests that Citation Nos. 8611199 and 8611200 be modified as to the operator to which they were issued. The citations were issued to Sunol Aggregates (“Sunol”). The CLR now wants them to be issued to Sunol’s subsidiary/contractor, DeSilva Gates (JDX) (“DeSilva”). Specifically, the CLR requests that the citations “be modified to” DeSilva.

            In its Answer to the petition, Sunol (not DeSilva) states that it “had recently acquired the property lease at the mine site, and was demolishing the existing aggregate plant to prepare for the construction of a new plant.” Ans. at 1. According to Sunol, it hired DeSilva “to harvest raw material from the quarry pit and stockpile it for future production.” Id.

            The Mine Act confers enforcement authority upon the Secretary. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). Section l04(a) of the Act delegates to the Secretary authority to issue citations for violations of the Act or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to the Act. The Commission, on the other hand, adjudicates disputes under the Mine Act. It has no authority to inspect mines, investigate violations, or issue citations. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996). In keeping with this distinction between the respective roles of the Commission and the Secretary under the Mine Act, the Commission has concluded that its United States Administrative Law Judges are not authorized representatives of the Secretary and do not have authority to charge an operator with violations of section 104 of the Mine Act. Mettiki Coal Corp., 13 FMSHRC 760, 764 (May 1991).

            The CLR in essence requests that I issue Citation Nos. 8611199 and 8611200 to DeSilva, which under the well-settled Commission law cited above I lack the authority to do.

            WHEREFORE, the motion for approval of settlement is DENIED.

                                                                        /s/ Robert J. Lesnick

                                                                        Robert J. Lesnick

                                                                        Chief Administrative Law Judge

Distribution:

Patricia L. Borer, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687

Jeff Workman, Safety Director, Sunol Aggregates, 11555 Dublin Boulevard, Dublin, CA 94568

/tas                                                                      

Patricia L. Borer

Conference & Litigation Representative

U.S. Department of Labor, MSHA

991 Nut Tree Road, 2nd Floor

Vacaville, CA 95687

Jeff Workman, Safety Director

Sunol Aggregates

11555 Dublin Boulevard

Dublin, CA 94568