FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 23, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006). On January 19, 2012, Administrative Law Judge Jerold Feldman issued a Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76(a)(1)(i). In his order, the judge certified for interlocutory review by the Commission his ruling in his Order of November 28, 2011, that a violation that is not attributable to reckless conduct may not be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history of prior similar violations. Unpublished Order at 2-3 (Jan. 19, 2012). On February 15, 2012, we issued an order granting review of the Judge’s order of November 28, 2011, with regard to that issue and ordered briefing.

            On March 6, 2012, the Commission received from the Secretary of Labor a motion to vacate the Commission’s February 15 order. As grounds for the motion, the Secretary states that she no longer seeks assessment of the three violations at issue as “flagrant” violations. The Secretary submits that, consequently, the issue directed for review by the Commission is moot. The Commission has received no opposition from Conshor Mining, LLC.

            Upon consideration of the Secretary’s motion, it is granted. We hereby vacate our February 15 order granting review. This case is remanded to Judge Feldman for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.  

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Jeffrey K. Phillips, Esq.

Steptoe & Jhonson, PLLC

1010 Monarch Street, Suite 250

Lexington, KY 40513

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021