FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W.

Washington, DC 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9954

November 27, 2012

ORDER ON MOTION FOR EXPEDITED PROCEEDING

            Before the Court is Contestant Bridger Coal Company’s Motion for Expedited Proceeding. The Secretary filed an opposition to the motion; Bridger then filed a reply, following which the Secretary filed a sur-reply. All submissions were considered. Upon consideration, the Court DENIES Bridger Coal’s Motion but directs the parties to participate in a conference call on Wednesday, December 5, 2012, at a time to be determined,

for the purpose of setting the matter for a hearing to be conducted in late January or during February 2013.

            Contestant, Bridger, simultaneously filed its Motion for Expedited Proceeding with its Notice of Contest in this matter. The controversy may be succinctly stated. In connection with an MSHA investigation of an accident at Bridger’s mine, MSHA sought copies of miners’ statements made to Bridger pertaining to that accident. Bridger initially refused to turn over the statements. However, when faced with the specter of the issuance of a section 104(b) Order, Bridger acceded to the demand for the statements. Bridger maintains that section 103(a) of the Mine Act “does not require mine operators to give MSHA inspectors, on demand, copies of any internal company statements . . . .”

            In seeking expedited review, Bridger contends that, at least in the context of a citation and the threat of a order being issued for failing to provide the statements, MSHA’s demand for those statements is an “unprecedented assertion of authority” which amounts to “extorting confidential company documents . . . by means of unlawful enforcement threats.” Motion at 1. Without an expedited proceeding, Bridger maintains that MSHA will make other unlawful demands of that ilk. Thus, Bridger asserts that because “substantial legal issues [are] at stake” and because it maintains there is a “high probability” that MSHA will repeat its conduct, an expedited proceeding is justified. Id. at 4.

            In its Opposition, the Secretary ticks off all the events which did not occur in connection with the Citation. Among these, it was not designated as “S&S,” there was no prolonged abatement period, as it was terminated fifteen minutes after being issued, no high gravity was claimed, nor was high negligence asserted. The Secretary notes, correctly in the Court’s view, that the only genuine issue is whether MSHA exceeded its enforcement authority in demanding the statements.

            While Bridger’s Reply maintains that the matter is both extraordinary and unique, and as such warrants expedited review by the Court, the Secretary’s Sur-Reply asserts that the absence of any continuing harm or hardship surrounding the citation in issue, is fatal to Contestant’s effort for an expedited hearing.

            The Court agrees that Bridger has failed to establish a sufficiently legitimate basis for expedited review. Instead, the heart of the matter here is whether, due to Bridger’s claim of the work-product privilege, it is entitled to withhold from MSHA the statements from its miners taken by Bridger and pertaining to the accident at the mine. As noted earlier, this seems to be an issue that the parties could submit to the Court, following discovery, and then upon stipulated facts, for a legal determination.

            However, determining that an expedited proceeding is not warranted does not mean that the matter may be permitted to laze about, relegated to position itself in queue with all other matters being litigated, akin to taking a number at a deli. The Contestant has, after all, filed a notice of contest and it is entitled to a prompt, albeit not expedited, hearing. The Secretary has inferentially agreed that Bridger is so entitled to a prompt hearing, as cases it cited in arguing that expedited treatment is unjustified note that an expedited basis is warranted by virtue of “invoking the contest provisions of Section 105(d) of the Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), wherein an operator may elect to contest a citation without waiting for a civil penalty to be proposed.” See, Consolidation Coal, 16 FMSHRC 495, 1994 WL 170800, at * 496, February 14, 1994 and Energy West Mine Co.,15 FMSHRC 2223, 1993 WL 560283 at * 2224, (1993). Secretary’s Sur-Reply at 1.

            Accordingly, for the foregoing reasons, Contestant Bridger’s Motion is DENIED but the matter is still to be set for a prompt hearing per the instructions in this Order.

SO ORDERED.

                                                                                    /s/ William B. Moran

William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Daniel W. Wolff, Esquire

Crowell & Moring, LLP

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2595

Karen E. Bobela, Esquire

U.S. Department of Labor

Office of the Solicitor

1999 Broadway, Suite 1600

Denver, CO 80202-5708