FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
March 27, 2013
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
DICKENSON-RUSSELL COAL COMPANY, LLC |
: : : : : : : : : |
Docket No. VA 2012-397 |
BEFORE: Jordan, Chairman; Young 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. On February 21, 2013, Administrative Law Judge Thomas P. McCarthy issued an Order Rejecting Amended Settlement Motion and Order for Certification of Interlocutory Review. Unpublished Order at 8 (Feb. 21, 2013). The proposed settlement at issue involved Citation No. 8190957. Id. at 1.
On March 4, 2013, the Commission issued an order pursuant to Commission Procedural Rule 76(a), 29 C.F.R. § 2700.76(a), directing interlocutory review on the question of whether the Secretary of Labor can remove a “significant and substantial” designation from a citation without leave of the Commission in settlement of a proposed assessment of civil penalty that has been contested. The Commission further ordered briefing by the parties.
On March 11, 2013, Dickenson-Russell Coal Company, LLC (“Dickenson-Russell”) filed with the Commission a Notice of Withdrawal of Contest. In the notice, Dickenson-Russell states that it has paid the civil penalty associated with Citation No. 8190957, and that it withdraws its notice of contest of the citation.
Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion
of the Commission, and that the Commission may grant interlocutory review upon a
determination that the Judge’s interlocutory ruling involves a controlling question of law and
immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).
Upon consideration of the matter, we have determined that, given the operator’s payment of penalty and its filing of a notice of withdrawal of its contest, the criteria for interlocutory review are no longer satisfied. We hereby vacate our order directing interlocutory review and remand the case to Judge McCarthy for further proceedings under the Mine Act, including a determination of whether this proceeding is moot.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
Distribution:
Cameron S. Bell, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
A. Scott Hecker, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Robert S. Wilson, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
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., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Thomas P. McCarthy
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004