<DOC>
[DOCID: f:se200062.wais]
NOLICHUCKEY SAND COMPANY, INC.
January 28, 2000
SE 2000 62-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 28, 2000
NOLICHUCKEY SAND COMPANY, : CONTEST PROCEEDINGS
INC., :
Contestant : Docket No. SE 2000 62-RM
v. : Citation No. 7778464; 1/3/2000
:
SECRETARY OF LABOR, : Docket No. SE 2000 63-RM
MINE SAFETY AND HEALTH : Citation No. 7778465; 1/3/2000
ADMINISTRATION (MSHA), :
Respondent : Docket No. SE 2000 64-RM
: Citation No. 7778466; 1/3/2000
:
: Bird's Bridge Mine
:
: Mine ID No. 40-03145
DECISION
Before: Judge Weisberger
Statement of the Case
These cases are before me based upon Notices of Contest
filed by Nolichuckey Sand Company, Inc. ("Nolichuckey") on
January 4, 2000, challenging the issuance by the Secretary of
Labor ("Secretary") of three section 104(b) withdrawal orders
based on an alleged failure to abate previously issued citations
alleging violations of 30 C.F.R. � 56.14109(a).[1] A Motion to
Expedite accompanied the notices of contest.
On January 6, 2000, in a telephone conference call initiated
by the undersigned with counsel for both parties, it was agreed
by counsel that the parties would waive a right to an oral
evidentiary hearing, and present the matter for decision based on
a stipulated set at facts, and legal argument. On January 12,
2000, the parties filed points and authorities. On January 13,
2000, in a recorded telephone conference call pursuant to the
parties' agreement, the parties presented oral arguments.
On January 12, 2000, the parties filed the following joint
stipulations regarding the relevant and materials facts in these
cases as follows:
1. Nolichuckey Sand Co., Inc., (Nolichuckey) is the
owner and operator of the Bird's Bridge Mine, MSHA Mine
ID No 40-03145.
2. Nolichuckey and the Bird's Bridge Mine are subject
to the provisions of the Federal Mine Safety and Health
Act of 1977 and this court has jurisdiction over this
proceeding.
3. The Secretary agrees to admit the attached
notarized Affidavit of Nolichuckey President Thomas
Bewley as proffer of testimony, but does not stipulate
to the truth of the matters states therein.
4. During 1999 and currently, the Bird's Bridge mine
employs four miners.
5. Annual production at this mine is approximately
150,000 tons of aggregate material.
6. Employees worked approximately 8,000 hours at this
mine in 1999.
7. Mr. Elton Hobbs, the inspector who issued the
subject citations and orders, is a duly authorized
representative of the Secretary of Labor.
8. Copies of the relevant citations and orders
previously filed with the Administrative law Judge are
authentic copies and were properly served.
9. On January 28, 1999, MSHA Inspector Elton Hobbs
issued six non-significant-and-substantial, low
negligence citations to Nolichuckey for alleged
violations of 30 C.F.R. � 56.14109(a) at its Pit No.
436, because of failure to install railings or
emergency stop devices on the inside of the catwalks at
six conveyors.
10. Nolichuckey timely contested the January 1999
citations and they were assigned to Dockets No. SE 99-
101-RM, SE 99-102-RM, SE 99-103-RM, SE 99-104-RM, SE
99-105-RM and SE 99-106-RM.
11. A trial was conducted concerning the January 1999
citations and on June 30, 1999, Administrative Law
Judge Weisberger issued a decision affirming the
citations.
12. Nolichuckey timely appealed this decision and the
Federal Mine Safety and Health Review Commission
granted the Petition for Discretionary Review on July
30, 1999. The case has been fully briefed before the
Commission and a decision is now pending.
13. MSHA has agreed to extend abatement on the Pit No.
436 conveyor citations throughout the trial before ALJ
Weisberger, however, it set an abatement date of
September 10, 1999 (subsequently extended until October
15, 1999).
14. On September 14, 1999, MSHA Inspector Hobbs issued
Citations No. 7777974, 7777976 and 7777978 to
Nolichuckey for alleged violations of 30 C.F.R. �
56.14109(a) at its Bird's Bridge Mine. All three
citations were categorized as non-significant and
substantial (gravity of unlikely to result in lost
workdays/restricted duty) and moderate negligence.
15. The above-listed citations allege a failure to
provide a mandatory railing or emergency stop device on
the inside of the catwalks on three conveyors.
16. Citations No. 7777974, 7777976 and 7777978 were
timely contested on September 22, 1999, by Nolichuckey
and were assigned to Dockets No. SE 99-289-RM, SE 99-
290-RM and SE 99-291-RM.
17. An initial abatement date of October 1, 1999, was
designated for Citations No. 7777974, 7777976 and
777978.
18. According to the Affidavit of Thomas Bewley,
Nolichuckey's Bird's Bridge mine has not been in
production since November 14, 1999, and it is not
scheduled to resume production until on or about
February 15, 1999. Further, Mr. Bewley states that the
cited conveyors are permanently locked out and are not
operational. See Bewley Affidavit at paragraph 2 and
4. Nolichuckey informed the Secretary of this fact
prior to December 31, 1999.
19. On December 31, 1999, MSHA refused to grant
Nolichuckey's request for further extension of
abatement on both the Bird's Bridge and Pit 436
citations, pending the final decision of the Commission
in Dockets No. SE 99-102-RM through SE 99-106-RM.
20. Nolichuckey subsequently abated the alleged
violations at is Pit 436 and those six citations have
been terminated without any further enforcement action.
21. On January 4, 2000, MSHA Inspector Hobbs issued
Orders No. 7778464, 7778465, and 7778466 (dated January
3, 2000) at Nolichuckey's Bird's Bridge mine, alleging
a failure to abate Citations No. 7777974, 777976 and
7777978 under Section 104(b) of the Mine Act, 30 U.S.C.
� 814(b).
22. Nolichuckey timely contested Orders No. 7778464,
7778465, and 7778466 on January 4, 2000, and requested
expedited proceedings.
23. At this time, the Commission has not rendered its
decision on the merits in Nolichuckey Sand Co., Inc. v.
Secretary of Labor, SE 99-102-RM through SE 99-106-RM.
24. The actual mechanical installation of stop cords
or hand railings is not at issued with respect to the
time of abatement.
In addition, in a telephone conference call, on January 12,
2000, the parties agreed to the following stipulation: "Inspector
Hobbs drafted the orders on January 3, 2000, and that he
physically served the orders on Nolichuckey on January 4, 2000"
In contesting a section 104(b) order[2], the operator may
challenge the reasonableness of time set for abatement, or the
Secretary's failure to extend that time. (Energy West Mining
Company 18 FMSHRC 565, 568 (1996) affirmed, 111 F.3rd 900 (D.C.
Cir. 1997); Clinchfield Coal Company, 11 FMSHRC 2120, 2128
(November 1989).
In evaluating whether the Secretary's failure to extend the
time set for abatement was reasonable I am guided by the
following language set forth by the Commission in Energy West,
supra: ". . . in reviewing an operator's challenge to the
Secretary's failure to extend an abatement time, the Commission
considers whether the inspector `abused his discretion' issuing
the order. The Commission has noted that `abuse of discretion'
has been found when `there is no evidence to support the decision
or if the decision based on an improper to understanding of the
law'. Utah Power and Light Co., 13 FMSHRC 1617, 1623 n.6
(October 1991), Bothyo v. Moyer, 772 F.2nd 353, 355 (7th Circuit
1985)." (18 FMSHRC at 569).
The underlying citations allege that Nolichuckey was not in
compliance with 30 C.F.R. � 56.14109(a) which requires that
unguarded conveyors next to travelways be equipped with either
emergency stop devices or railings. Nolichuckey does not assert
that by December 30, 1999, the date set for abatement in the last
extension, it had provided the subject equipment with either stop
devices or railings, that it was in the process of making such
installations, or that it had encountered unanticipated
difficulties in making such installations. It appears to be
Nolichuckey's position that the equipment at issue does not come
within the purview of Section 56.14109(a) and that accordingly
compliance with the section is not required. Nolichuckey argues
that since this issue is presently pending before the Commission
in Secretary v. Nolichuckey Sand Co. Inc., Docket No. SE 99-101-
RM et al, it is unreasonable not to extend abatement until the
Commission rules on this controlling issue.
In the absence of the binding authority I must conclude that
there was no abuse of discretion on the Secretary's part to
refuse to extend abatement pending a decision by the Commission
where the operator has not taken any steps to comply with the
standard that is the subject of the issued citations.
Nolichuckey argues further that the Secretary's
representative abused his discretion in not extending the
abatement time, since he failed to take into consideration the
lack of risk for non-compliance based on the non-significant and
substantial character of the citations at issue, and the fact
that the Secretary in the past implicitly recognized the lack of
risk by granting a number of extensions while the equipment was
in operation, whereas at present the conveyors in issue have been
locked and tagged and are not scheduled to be in operation until
February 15, 2000.[3]
I find no merit to Nolichuckey's arguments since there is no
evidence in the record that Nolichuckey is in compliance with
Section 14109(a) supra, or that it has taken or intends to take
any actions to comply with the cited standard, and hence to abate
the violations. In the absence of any controlling authority I
cannot find that failure to extend abatement when the equipment
is not in operation constitutes an abuse of discretion. I note
that Secretary of Labor v. Noland Corporation 15 FMSHRC 468, 477
(Judge Morris 1993), the only case wherein this issue was
actually litigated, is contrary. However Noland, supra was
decided by a Commission judge (since retired). Since this
decision is not binding precedent, I choose not to follow it.
Lastly, Nolichuckey argues, in essence, that, due to the
nature of its operation, were it to comply with section 14109(b)
supra, and thus abate the violations at issue, it would be in
violation of 30 C.F.R. � 56.14109(b)(3) which requires that
unguarded conveyors be equipped with emergency stop devices or
railings that ". . . are constructed and maintained so that they
will not create a hazard". In essence, this argument is in
reality based on "diminution of safety." It has been held by the
Commission that "diminution of safety" is not available to an
operator as a defense unless it had first filed a petition for
modification, and the Secretary had granted the modification but
nonetheless continued the enforcement proceedings. (Sewell Coal
Company, 5 FMSHRC 2026, 2029 (December 1983). Accordingly, I
find that the argument of diminution of safety is not relevant to
the instant proceedings.
Therefore, for all the above reasons, I conclude that the
Secretary was not unreasonable in deciding not to extend the time
set for abatement beyond December 30.
ORDER
It is ORDERED that the notices of contest filed in these
proceedings shall be dismissed. It is further ORDERED that these
cases be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Adele L. Abrams, Esq., Patton Boggs, LLP, 2550 M Street, N.W.,
Washington, D.C. 20037 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
nt
**FOOTNOTES**
[1] 30 C.F.R. � 56.14109(a) provides that "[u]nguarded
conveyors next to the travelways shall be equipped with - (a)
Emergency stop devices which are located so that a person falling
on or against the conveyor can readily deactivate the conveyor
motor; or (b) Railings which - (1) Are positioned to prevent
persons from falling on or against the conveyor; . . . ."
[2] Section 104(b) of the Federal Mine Safety and Health Act
of 1977 provides as follows:
If, upon any follow-up inspection of a coal or other
mine, an authorized representative of the Secretary
finds (1) that a violation described in a citation
issued pursuant to subsection (a) has not been totally
abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further
extended, he shall determine the extent of the area
affected by the violation and shall promptly issue an
order requiring the operator of such mine or his agent
to immediately caus all persons, expect those persons
referred to in subsection (c), to be withdrawn from,
and to be prohibited form entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.
[3] In this connection, Nolichuckey argues that for
the Secretary to refuse abatement now is unreasonable.
Nolichuckey relies on the following language from the
Commission's decision in Secretary v. Nolichuckey Sand Co.,
Inc., 21 FMSHRC 1218, 1220 (November 30, 1999): "The
Secretary's insistence at this particular time to require
abatement makes little sense . . . ." This statement is
clearly dicta as it was not necessary to the Commission's
decision that the temporary reinstatement procedures in
section 105(b)(2) of the Act do not include temporary
relief from section 104(a) citations. Accordingly, the
relied upon language form Nolichuckey is not binding
precedent, and I choose not to follow it for the
reasons set forth above.