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
August 21, 2014
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WHITE OAK RESOURCES, LLC, Contestant,
v.
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner |
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CONTEST PROCEEDINGS
Docket No. LAKE 2014-650-R Order No. 8450348; 07/24/2014
Docket No. LAKE 2014-651-R Order No. 8450350; 07/24/2014
White Oak Mine No. 1 Mine ID 11-03203 |
ORDER DENYING CONTESTANT’S MOTION FOR EXPEDITED HEARING
AND
ORDER STAYING CONTEST PROCEEDINGS
These proceedings are before me upon the Notice of Contest filed by White Oak Resources, LLC (“White Oak” or “Contestant”) on August 6, 2014, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. White Oak contests the validity of Order Nos. 8450348 and 8450350, issued pursuant to section 104(d)(1) of the Mine Act.1 30 U.S.C. § 814(d)(1). On the same day, counsel for White Oak also filed a Motion for Expedition of Proceedings. (Contestant Mot. at 1.) Chief Administrative Law Judge Robert J. Lesnick assigned this case to me on August 8, 2014. Counsel for the Secretary filed a timely Response in Opposition to Contestant’s Motion to Expedite on August 15, 2014. 2
I. Motion for Expedited Hearing
In its Notice of Contest, White Oak asserted that at the time these orders were issued, the mine was in compliance with the approved roof control plan in all construction areas, and thus the orders were “clearly erroneous and must be vacated,” as their issuance was “arbitrary, capricious and [] not in accordance with law.” (Contest Notice at 2.) White Oak claimed it similarly “excavated 16 such areas as those cited in the [o]rders, in compliance with the construction provisions of the approved roof control plan” since June 2013, and that MSHA inspectors previously found no violations.
White Oak attached to its Notice of Contest copies of both orders as a single exhibit. (Contest Notice, Ex. 1 at 1–6.) Order No. 8450348, dated July 24, 2014, alleges a violation of 30 C.F.R. § 75.220(a)(1), which requires mine operators to develop and follow an approved roof control plan.3 As noted in the body of the order, MSHA Inspector Glenn Fishback observed that Contestant’s mining height exceeded seven feet in the 1 North Main return construction entry #1 between crosscuts 21 and 23 and that no rib bolts were present. The order further alleges that White Oak’s construction violated its approved roof control plan, which requires the operator to install rib support in areas developed after April 15, 2014, where the mining height exceeds seven feet. Finally, the order alleges that the violation affected two people, that it was reasonably likely to cause injury or illness, and that any injury or illness would result in lost workdays or restricted duty. (Contest Notice, Ex. 1 at 1–4.)
Order No. 8450350, also dated July 24, 2014, alleges a violation of 30 C.F.R. § 75.360(a)(1), which requires mine operators to conduct a preshift examination prior to the start of any eight-hour work interval.4 Inspector Fishback found no record of a preshift examination at the 1 North Main “over-cast construction site” prior to a scheduled work shift on July 24. (Contest Notice, Ex. 1 at 5.) The order alleges that the violation affected two people, that it was highly likely to cause injury or illness, and that any injury or illness would have resulted in lost workdays or restricted duty. (Contest Notice, Ex. 1 at 5–6.)
Now, in a sparse, two-page motion devoid of any citation to law, Contestant requests a hearing on an expedited basis, seeking a decision on whether the construction procedures being performed at White Oak Mine No. 1 violate the mine’s approved roof control plan. (Contestant Mot. at 1.) In support of its motion for an expedited hearing, Contestant parrots its Notice of Contest and alleges the Secretary’s two orders do not have any basis in fact or law. (Contestant Mot. at 1.) Contestant again claims it has similarly excavated 16 other areas since June 2013 in accordance with the mine’s approved roof control plan without incident. (Id.) According to White Oak, Order No. 8450348 calls into question whether Contestant’s ongoing excavation complies with the mine’s current roof control plan. (Id.) Contestant fears that delaying the ultimate determination on both orders’ legitimacy would potentially expose White Oak to numerous similar violations, as well as higher penalties for pattern of violations determinations and flagrant violations. (Id. at 2.)
The Secretary responds that Contestant has made no showing that justifies adjudicating these orders on an expedited basis under Commission Procedural Rule 52, 29 C.F.R. § 2700.52. (Sec’y Resp. at 1.) The Secretary maintains that under Commission case law White Oak has failed to meet its burden and that the orders were issued for “standard violations of a roof control plan and do not merit special consideration or treatment at an expedited hearing.” (Id. at 1–2.) The Secretary emphasizes that the orders in dispute relate to the application of a new roof control plan put in place in April 2014. (Id. at 1.) Importantly, the Secretary points out that White Oak does not allege that coal production has been stopped by the issuance of either order. (Id.)
Commission Procedural Rule 52 sets forth the procedures for requesting and scheduling an expedited proceeding, but it does not address the standards under which such a request is to be evaluated. 29 C.F.R. § 2700.52. In Wyoming Fuel Company, the Commission held that consideration of an expedited hearing request remains within the discretion of the Judge. Further, the Commission indicated that the Act neither mandates immediate hearings in all circumstances, nor requires that a party’s motion to expedite proceedings be granted on the terms sought; rather, a hearing must be held “within a period of time reasonable under the circumstances of each case.” 14 FMSHRC 1282, 1287 (Aug. 1992). Commission Judges have held that for an operator to be entitled to such consideration it must show: (1) extraordinary or unique circumstances (2) resulting in continuing harm or hardship. See Sw. Portland Cement Co., 16 FMSHRC 2187, 2187 (Oct. 1994) (ALJ).
Here, Contestant’s argument boils down to a fear that future MSHA enforcement of the standard, as the inspector applied it in this case, will expose Contestant to a parade of horribles including a series of heightened penalties. White Oak’s predicament might qualify as a continuing harm or hardship if it could show MSHA’s current enforcement of the roof control plan left the mine shuttered or paralyzed. Contestant falls short of this bar. Indeed, the two orders are not alleged to have affected production in any way, and White Oak abated them by complying with the approved plan, which led to the orders being terminated on July 31, 2014. (Contest Notice, Ex. 1 at 4.) Although White Oak asserts the orders in dispute expose it to possible flagrant violations or pattern of violations determinations under § 110(b)(2) or § 104(e) of the Mine Act, Contestant offers no information to substantiate these concerns. (Contestant Mot. at 2.) Lacking any further details of White Oak’s predicament, I am left to hypothesize at the scope and magnitude of harm that Contestant could face. No matter how creative, such hypotheticals are insufficient to carry White Oak’s burden of demonstrating continuing harm. Consequently, I determine that any continuing harm or hardship is uncertain and tenuous at best.
White Oak also has not explained why its burden of compliance with the roof control plan ranks as extraordinary among its industry peers. Merely claiming an extraordinary burden does not elucidate how such a unique burden would befall Contestant but not its competitors. Every day operators face possible citations and orders that might impede continued operations. The mere potential for future citations or orders—even those whose enforcement would make future operations uneconomical or impossible—is not unique to Contestant. Cf. Consolidation Coal Co., 16 FMSHRC 495, 496 (Feb. 1994) (ALJ) (“While I am certain the contestant finds little comfort in the fact that thousands of [section 104(d)] orders are issued each year, it is nonetheless not alone in its alleged predicament. Consequently, there are no special circumstances justifying an expedited hearing.”). White Oak’s circumstances are far from extraordinary.
White Oak will have its day in court; it simply has not shown the need for an expedited hearing. Upon my review of the pleadings, I determine that Contestant has not met its burden of showing extraordinary or unique circumstances resulting in continuing harm or hardship. Therefore, Contestant’s Motion for Expedition of Proceedings is hereby DENIED.
II. Stay of Contest Proceedings
Contest proceedings before Commission Judges are typically stayed until the filing of their companion penalty proceedings, at which time the contest and penalty cases are consolidated for hearing and decision. See Marfolk Coal Co., 29 FMSHRC 626 (Aug. 2007). This is an efficient procedure, which conserves judicial resources by not necessitating the holding of two separate hearings in the contest and penalty proceedings. See Commission Procedural Rules 12 and 55, 29 C.F.R. §§ 2700.12, 2700.55.
Here, I determine it is proper to stay these contest proceedings until the filing of the companion penalty case for the reasons stated above. Therefore, it is hereby ORDERED that these contest proceedings are STAYED until the Secretary files a petition for the assessment of civil penalty and White Oak files an answer. Discovery, if the parties so desire, may take place during the stay. The parties are further ORDERED to notify my office when they file their respective pleadings (petition and answer) in the penalty proceeding, so I may then consolidate the contest and penalty cases for hearing and disposition.
/s/ Alan G. Paez
Distribution: (Via Electronic Mail & U.S. Mail)
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509
(billys1@jwtslaw.com)
Suzanne F. Dunne, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Dunne.Suzanne@dol.gov)
/lct
Contestant filed a Notice of Contest on August 6, 2014 (hereinafter referenced as “Contest Notice”), and a Motion for Expedition of Proceedings also dated August 6, 2014 (“Contestant Mot.”). The Secretary made only one filing on August 15, 2014, a Response in Opposition to Expedited Hearing (“Sec’y Resp.”).
Counsel for White Oak subsequently filed a Reply to the Secretary’s Response in Opposition. Commission Procedural Rule 10, 29 C.F.R. § 2700.10, which governs the filing of motions before Commission Judges, allows for a statement in opposition to a written motion; however, it does not provide for a reply. White Oak did not seek leave from the Court to file its reply, and I see no reason to grant it sua sponte. Nevertheless, I note that the additional information in White Oak’s Reply would not affect my decision.
Section 75.220(a)(1) provides that “[e]ach mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.” 30 C.F.R § 75.220(a)(1).
Section 75.360(a)(1) provides that “[e]xcept as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval . . . .” 30 C.F.R § 75.360(a)(1).