FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
January 22, 2007
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. CHESTNUT COAL |
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Docket Nos. PENN 2006-145-R PENN 2006-146-R PENN 2006-147-R PENN 2006-148-R PENN 2006-149-R |
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DIRECTION FOR REVIEW AND DECISION
BY THE COMMISSION:
These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (“Mine Act” or “Act”), involve Notices of Contest filed by Chestnut Coal (“Chestnut”) pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). The Secretary of Labor issued proposed civil penalties for the citations being contested, Chestnut contested those penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the Secretary has filed a petition for assessment of the penalties in Commission Docket No. PENN 2006-272. Consequently, in a sua sponte Order issued January 19, 2007, the judge dismissed the contest cases without prejudice, because “[a]ll issues related to the alleged violations and the amount of the proposed penalties will be resolved in the civil penalty proceeding.”
In Energy Fuels Corp., 1 FMSHRC 299 (May 1979), the Commission stated:
Inasmuch as a citation and related withdrawal orders may be issued before the Secretary has proposed a penalty, the operator’s interest in immediately contesting the allegation of violation and the special findings in a citation may be considerable. As we have said, affording the operators this opportunity will not adversely affect the interests of miners. The Secretary has not convinced us that the interest in avoiding piecemeal litigation necessarily outweighs the interests of the operators, for we think that the Commission both could allow operators to immediately contest all parts of citations, and largely accommodate the interest cited by the Secretary. If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we would expect him to postpone his contest of the entire citation until a penalty is proposed. Even if he were to immediately contest all of a citation but lacked an urgent need for a hearing, we see no reason why the contest of the citation could not be placed on the Commission’s docket but simply continued until the penalty is proposed, contested, and ripe for hearing. The two contests could then be easily consolidated for hearing upon motion of a party or the Commission’s or the administrative law judge’s own motion.
Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 (“The Commission and its judges may at any time, upon their own motion or a party’s motion, order the consolidation of proceedings that involve similar issues”).
The judge’s order does not explain why the initiation of the civil penalty proceeding
should result in the dismissal of the contest proceedings, as opposed to the consolidation of the
contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the
Commission directs these cases for review on a question of law and Commission policy, and
summarily vacates the judge’s order and remands the cases for further proceedings. See The
Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting
reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale
explaining why he chose to dismiss the cases instead of consolidating them with the penalty
proceeding.
________________________________________
Michael F. Duffy, Chairman
_________________________________________
Mary Lu Jordan, Commissioner
________________________________________
Michael G. Young, Commissioner
Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Mark V. Swirsky, Esq.
Office of the Solicitor
U.S. Department of Labor
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021