.
MOUNTAIN CEMENT COMPANY
WEST 2001-376-RM
June 25, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 25, 2001
MOUNTAIN CEMENT COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 2001-376-RM
: Order No. 7919298; 3/26/2001
v. :
: Docket No. WEST 2001-378-RM
: Order No. 7919300; 3/27/2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Mountain Cement Company
ADMINISTRATION, (MSHA), : Mine Id. 48-00007
Respondent :
ORDER GRANTING MOTION FOR EXPEDITED HEARING
On March 26 and 27, 2001, MSHA Inspector John R. King
issued at least 20 orders of withdrawal to Mountain Cement
Company under section 104(d)(2) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 814(d) ("Mine Act").
Mountain Cement received a section 104(d)(1) citation and
order during a previous inspection.
Mountain Cement contested the section 104(d)(2) orders
under 29 C.F.R. � 2700.20. The Secretary filed a motion to
stay all of the proceedings until civil penalties are
proposed. I granted the Secretary's motion to stay with
respect to all the cases except the two above-captioned cases.
Mountain Cement filed a motion for an expedited hearing in
the present cases. The Secretary opposes the motion.
A mine operator has the right under the Mine Act and the
Commission's Procedural Rules to contest citations and orders
before a petition for assessment of penalty is filed. A mine
operator also has the right to a pre-penalty hearing in contest
cases such as these. Mountain Cement asked for an expedited
hearing. The Procedural Rules do not specify the basis upon
which a motion for expedited hearing shall be granted. 29
C.F.R. � 2700.52. Consideration of such a request is within
the discretion of the judge. Wyoming Fuel, 14 FMSHRC 1282
(Aug. 1992). Commission judges have held that a mine operator
must show "extraordinary or unique circumstances resulting in
continuing harm or hardship." Southwestern Portland Cement
Co., 16 FMSHRC 2187 (Oct. 1994) (ALJ). As a general matter,
the fact that a mine operator is on a section 104(d)
unwarrantable failure chain is not a sufficient basis for
granting a motion for expedited hearing. The possibility
that an operator could be subject to future withdrawal orders
under section 104(d) is neither extraordinary nor unique
under the Mine Act.
The circumstances presented by these cases, however, are
rather unique and extraordinary. Mountain Cement requested a
conference with MSHA on the section 104(d)(2) orders.
Representatives of Mountain Cement met with representatives of
MSHA on or about May 15, 2001. At this conference, every
section 104(d)(2) order was modified to a section 104(a)
citation with the exception of the two orders at issue in the
present cases and four other orders that were vacated at the
conference. Thus, of the 20 orders issued, only two met the
requirements of Section 104(d)(2). This fact raises a very
real possibility that the MSHA inspector abused his discretion
or seriously misapplied the law regarding unwarrantable failure
orders. Most of the alleged violations were not designated
as significant and substantial ("S&S") and most of those that
were so designated were modified to non-S&S at the conference.
As a result, Mountain Cement had to cease all operations while
it abated 20 mostly non-S&S violations.
As modified, the two orders at issue allege non-S&S
violations. Order No. 7919298 alleges that access in the area
of a hopper was obstructed by accumulated material in violation
of section 56.20003(a). Order No. 7919300 alleges that spilled
material had accumulated on the top deck of the feed tank in
violation of section 56.20003(b). The order states that the
cited "area is subject to high winds that can cause silica-
bearing dust to become airborne" exposing employees to a health
hazard. It was designated as an unwarrantable failure for that
reason. When the order was modified to delete the S&S
determination, the conference officer stated that the "tanks are
located indoors, the wind should not be a factor." This
disparity raises serious issues that Mountain Cement is entitled
to have resolved. Many of the other modifications issued at the
conference set forth facts that are at odds with the original
orders. The potential harm to Mountain Cement is continuing in
nature.
For good cause shown, Mountain Cement's motion for an
expedited hearing is GRANTED. The 90-day period that is set
forth in section 104(d) expires on or about June 26, 2001. A
hearing cannot be scheduled prior to the expiration of the
90-day period. As a consequence, although I am granting
Mountain Cement's motion, the hearing need not be held within
the next two or three weeks.
Mountain Cement did not indicate where it would prefer to
hold the hearing. Unless I order otherwise, the hearing will
be in the Commission's Denver courtroom. I am available for
hearing on the following dates: the week of July 9, July 19
(Denver only), the week of July 23, August 2, and the week of
August 27, 2001. I will not schedule the hearing the week of
July 9, without the consent of both parties. Other dates may
become available as cases settle. The parties shall discuss
potential hearing dates and schedule a conference call with
me to discuss these cases as soon as practicable.
Richard W. Manning
Administrative Law Judge
Distribution:
Michael T. Heenan, Esq., Heenan, Althen & Roles, 1110 Vermont
Avenue, N.W., Suite 400, Washington, D.C. 20005-3593 (Fax and
First Class Mail)
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department
of Labor, P.O. Box 46550, Denver, CO 80201-6550 (Fax and First
Class Mail)
RWM