FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue N.w., Suite 9500

Washington, D.C. 20001

August 23, 2006

ORDER DENYING

MOTION FOR RECONSIDERATION

            These cases are before me on Notices of Contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d). At the request of the Secretary, and without objection by the Contestant, proceedings in these matters were stayed on July 18, 2006. The Secretary has now filed a Motion for Reconsideration of the stay order. The Contestant objects to part of the Secretary’s motion. For the reasons set forth below, the motion is denied.

            The Secretary first requests that “a clarification be issued to make clear that only the scheduling of a hearing date . . . is being stayed and that the parties are permitted to engage in discovery and other prehearing matters.” (Mot. at 2.) The Secretary asserts that this “is necessary to avoid any misunderstanding between the parties that may occur.” (Mot. at 2.) The Respondent does not object to this part of the motion.

            Section 105(d) of the Act and Commission Rule 20, 29 C.F.R. § 2700.20, permit an operator to contest an order or citation without waiting for a civil penalty to be assessed. Energy Fuels Corp., 1 FMSHRC 299, 308 (May 1979). In Energy Fuels, the Commission noted that the reason for this is that “the operator’s interest in immediately contesting the allegation of violation and the special findings in a citation may be considerable” when “related withdrawal orders may be issued before the Secretary has proposed a penalty.” (Id.) However, the Commission went on to say that if “the operator . . . lacked a need for an immediate hearing, we would expect him to postpone his contest of the entire citation until a penalty is proposed.” (Id.)

            Clearly, the operator in these cases does not have an immediate need for a hearing as it has agreed to the stay. Nevertheless, rather than follow the advice of the Commission, the operator’s counsel has expressed the intention, according to the Secretary, of filing notices of contest of all citations and orders that contain a finding of “significant and substantial.” The Secretary states that its Arlington office has “received more than 290 notice of contest cases in the past two months.” (Mot. At 3.) In its response, the Contestant does not deny this assertion, it merely asseverates its right to file a notice of contest.

            Although not expressly stating so, it is apparent that the practice of filing a notice of contest for every citation or order containing special findings is placing a significant burden on the Secretary. More importantly, processing notices of contests requires the Commission’s Docket Office to prepare duplicate files for the same violation, with the incidental copying associated therewith, and necessitates twice the storage space. It also requires the pro forma ruling on unopposed stay motions in cases that were never intended to be contested immediately.

            Permitting discovery in these cases may well result in needless time and expense for the parties, who may conduct discovery on citations which would not even be contested once the civil penalty is assessed. Moreover, superfluous discovery could involve the Commission in mediating unnecessary discovery disputes. Therefore, pursuant to Commission Rule 56(c), 29 C.F.R. § 2700.56(c), discovery will be limited to periods when these matters are not stayed.

            The Secretary also requests reconsideration of the requirement in the stay order that she periodically report on the status of the civil penalty cases corresponding to the contest cases and asks that this requirement be placed on the Contestant. Not surprisingly, the Contestant objects to this request.

            This part of the motion is also denied. The Secretary requested the stay in these cases. Of greater significance, the Secretary assesses the penalty in these cases and, therefore, is in a much better position to know the status of the civil penalty cases than is the Contestant. Furthermore, since the Secretary is in control of penalty assessments, she can determine how long the cases are on stay by how quickly she assesses the penalty. For all of these reasons, I find that counsel for the Secretary is the appropriate party to report on the status of the civil penalty cases.

Order

            The filing of notices of contest for no apparent purpose places unnecessary burdens on all areas of the system. There is no reason to add to those burdens by permitting discovery while the cases are on stay. Additionally, the Secretary is the appropriate party to file status reports on civil penalty cases being processed for orders and citations which are the subjects of notices of contest. Accordingly, the Motion for Reconsideration is DENIED.

                                                                        T. Todd Hodgdon

                                                                        Administrative Law Judge

                                                                        (202) 434-9973

Distribution: (Certified Mail)

Robert H. Beatty, Jr., Esq., Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry Square, Morgantown, WV 26508

Elizabeth Lopes Beason, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

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