FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001
January 22, 2007

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 2007-26-M. Consequently, in a sua sponte Order issued December 21, 2006, 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