<DOC>
[DOCID: f:ce95121.wais]

 
D. H. BLATTNER & SONS
June 23, 1995
CENT 95-121-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                            June 23, 1995

D. H. BLATTNER & SONS,      :  CONTEST PROCEEDING
  INCORPORATED,             :
          Contestant        :  Docket No. CENT 95-121-RM
                            :  Mine ID 29-00233
          v.                :
                            :  Continental Pit
SECRETARY OF LABOR,         :
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :
          Respondent        :

                          ORDER OF DISMISSAL

Before: Judge Merlin

     On February 17, 1995, the contestant filed a notice
of contest alleging it was given a verbal order by an 
inspector of the Mine Safety and Health Administration
(hereafter referred to as "MSHA"), to comply with 30 C.F.R.
� 41.20 or be shut down.  The regulation requires operators
to file a notification of legal identity with the 
appropriate MSHA district manager. The contestant argues   
that because it is an independent contractor, the
regulation should not be applied to it. According to the 
contestant, it is a party in other cases now on appeal 
before the Commission which present the same issue. Those
cases involve a different mine and operator.[1]

     On March 9, 1995, an order was issued directing the 
Solicitor to file a response to the notice of contest. On
April 6, 1995, the Solicitor filed a motion to dismiss,  
denying that a verbal order had been issued for failure to
file a legal identity report. The Solicitor further asserts
that on January 10, 1995, MSHA issued a citation to the 
contestant under section 104(a), 30 U.S.C. � 814(a), 
alleging a violation of 30 C.F.R. � 41.20. The Solicitor 
states that the contestant did not seek review of the 
citation and that this contest is an attempt to confer 
jurisdiction upon the Commission with respect to it.  The 
instant complaint however, makes no mention of the January 
10 citation. After receiving the Solicitor's motion to 
dismiss, the contestant filed a brief alleging that it 
had not been served with such a citation.

     With respect to the alleged January 10 citation, it 
is noted that section 105(d) of the Mine Act, 30 U.S.C.  
� 815(d), provides an operator with dual avenues of 
relief. An operator may within 30 days of the receipt  
thereof contest the issuance or modification of any order  
or citation.  29 C.F.R. �� 2700.20, 2700.21. In addition 
or as an alternative, the operator may wait until the 
Secretary notifies it of a proposed penalty assessment for
the alleged violation and then file a notice of contest.  
29 C.F.R. ��  2700.25, 2700.26. In this case if a penalty  
assessment is proposed with respect to the January 10 
citation, the operator can challenge the citation and the
assessment at that time and raise the issue of service.

     The Commission has no jurisdiction to review the 
alleged verbal order issued on January 18, 1995, by an
MSHA inspector requiring it to obtain a legal identity 
number or be shut down. Section 104 of the Act, supra, 
sets forth the conditions under which the Secretary may 
issue citations to operators for violations of the Act and
thereafter issue orders of withdrawal. Citations are
expressly required to be in writing and it is clear the
Act contemplates that orders issued after the citations
also be in writing.  The legislative history of the Act
demonstrates that citations and orders are treated the
same. S. Rep. No. 461, 95th Cong., 1st Sess. 47 (1977),
reprinted in, Senate Subcommittee on Labor, Committee on 
Human Resources, 95th Cong., 2nd Sess., Legislative 
History of the Federal Mine Safety and Health Act of 1977, 
at 1325 (1978).  Section 109 of the Act, 30 U.S.C. � 819,
provides, inter alia, that orders and citations be posted 
on a bulletin board at the mine. Also, Commission 
regulations require that a legible copy of the contested  
citation or order be attached to the operator's notice of 
contest and that if a legible copy is not available, the 
text of the citation or order be set forth in the notice  
of contest. 29 C.F.R. �  2700.20(e).  To comply with the 
posting and filing provisions, the citation or order must 
be in writing.

     Accordingly, even assuming the operator received a 
verbal order as it alleges, such an order would be of no
effect because it was not in writing.  No penalty 
assessment can be based upon an oral communication.  If
the operator disagrees with an inspector's verbal 
communications, it may wait until the inspector completes
and serves a written order.  Then it can abate the order  
to avoid the effects of a withdrawal order and seek review 
before the Commission. If the operator decides not to
abate, in which case the withdrawal order takes effect, it 
may seek expedited review before the Commission.  Section 
105(d), supra; 29  C.F.R. �� 2700.20, 2700.52. An 
administrative agency is a creature of Congress and cannot
exceed the jurisdiction given to it by Congress.  Lyng v.
Payne, 476 U.S. 926, 937 (1986); Killip v. Office of 
Personnel Management, 991 F.2d 1564, 1569 (Fed Cir. 1993).
The Commission has followed this principle. Kaiser Coal 
Corp., 10 FMSHRC 1165, 1169 (September 1988). Under 
section 105(d), supra, the operator can seek review of an
order or citation issued under section 104 and the 
Commission is directed to afford an opportunity for a 
hearing under 5 U.S.C. � 554. Since any order or citation 
issued under section 104 must be in writing, the 
Commission's jurisdiction extends only to such orders and 
citations.

     In light of the foregoing, it is ORDERED that this 
case be DISMISSED.


                            Paul Merlin
                            Chief Administrative Law Judge


Distribution:  (Certified Mail)

Michael S. Lattier,  Esq., James B. Lippert, Esq., Gough,   
Shanahan, Johnson & Waterman, D. H. Blattner & Sons, Inc.,
33 South Last Chance Gulch, Suite 1, P. O. Box 1715,
Helena, MT 59624-1715

Robert A. Cohen, Esq., Office of the Solicitor, U.S. 
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

/gl


**FOOTNOTES**

     [1]: Docket Nos. WEST 93-123, WEST 93-286, and WEST 
94-5-M.