FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 28, 2009

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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) (“Mine Act”). On March 13, 2009, pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a withdrawal order to Mach Mining, LLC (“Mach”), alleging a violation of 30 C.F.R. § 75.370(d), a ventilation plan regulation. Mach filed a notice of contest, and in an order dated May 15, 2009, ruling on cross motions for summary decision filed by the Secretary of Labor and Mach, Administrative Law Judge Richard Manning held that Mach had violated section 75.370(d). 31 FMSHRC 709, 713-15 (May 2009) (ALJ).

            Mach subsequently submitted a modified ventilation plan for approval to MSHA in order to abate the violation. MSHA did not agree that the violation had been abated and refused to terminate the order of withdrawal. Mach then requested a hearing on whether the violation has been abated and the order should terminate, and the judge set the case for hearing. The Secretary filed a motion to cancel the hearing on the ground that the Commission lacks jurisdiction to determine whether abatement has occurred and order termination of the order.

            On August 18, 2009, the judge denied the Secretary’s request to cancel the hearing based on his conclusion that he had jurisdiction to review the order. The Secretary subsequently requested that the judge reconsider his decision or, in the alternative, certify the question of jurisdiction for interlocutory review by the Commission. Mach filed a response in opposition to both requests. On August 25, 2009, the judge denied reconsideration but granted the request for certification.

            Interlocutory review is a matter of sound discretion of the Commission. 29 C.F.R. § 2700.76(a). The Commission will grant interlocutory review upon a majority vote that a 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)(2). Upon consideration of the judge’s certification, all four Commissioners agree that the ruling involves a controlling question of law. Chairman Jordan and Commissioner Cohen further conclude that immediate review would materially advance the final disposition of the proceeding and thus would grant interlocutory review. Commissioner Duffy and Commissioner Young do not agree and would deny review. Accordingly, because there is not a majority of Commissioners who would grant interlocutory review, it is denied.

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Mary Lu Jordan, Chairman

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Michael F. Duffy, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Suzanne F. Dunne, Esq.

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn St., 8^th Floor

Chicago, IL 60604 

Daniel W. Wolff, Esq.

Crowell & Moring, LLP 

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

Morris Niday

Miner’s Representative

Mach Mining, LLC

P.O. Box 300

Johnston City, IL 62951

Administrative Law Judge Richard W. Manning

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1244 Speer Blvd., Suite 280

Denver, CO 80204