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[DOCID: f:se99101c.wais]
NOLICHUCKEY SAND CO., INC.
November 30, 1999
SE 99-101-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 30, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket Nos. SE 99-101-RM
ADMINISTRATION (MSHA) : SE 99-102-RM
: SE 99-103-RM
v. : SE 99-104-RM
: SE 99-105-RM
: SE 99-106-RM
NOLICHUCKEY SAND CO., INC. :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and
Beatty, Commissioners
ORDER
BY: Riley, Verheggen, and Beatty, Commissioners
Before us is a "Motion to Stay Abatement" filed by
Nolichuckey Sand Company, Inc., ("Nolichuckey") on September
22, 1999 in the above-captioned proceedings. Mot. at 1.
The motion recites that on January 28, 1999, MSHA issued
Nolichuckey six citations alleging violations of 30 C.F.R.
� 56.14109(a). Id.; see 21 FMSHRC 681, 682 (June 1999) (ALJ).
The Department of Labor's Mine Safety and Health
Administration ("MSHA") agreed to extend the time period for
abatement of the citations at issue until the judge rendered
his decision. Mot. at 1. Administrative Law Judge Avram
Weisberger upheld the citations on June 30. Id. MSHA further
extended until October 1 the date by which the operator was
to abate the cited conditions. Id. at 1-2. In support of
its motion, Nolichuckey states that review of the judge's
determination in this matter is pending before the Commission,
that briefing in this matter will not be complete by the date
by which it must abate the cited conditions, that the alleged
violation is non-significant and substantial, that MSHA's
enforcement position prior to these citations' issuance was
that the operator was in compliance with the safety standard,
and that continuation of the status quo would not place miners
at risk of bodily injury. Mot. at 2.
The Secretary of Labor opposes Nolichuckey's motion. The
Secretary submits that section 105(b)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 815(b)(2) (1994)
("Mine Act" or "Act"), "prohibits the Commission from granting
temporary relief . . . in the case of a citation issued under
subsection (a) or (f) of Section 104 [of the Act]." S. Opp'n
at 2 (citing 30 U.S.C. � 815(b)(2)). The Secretary's opposition
also cites Energy Fuels Corp., 1 FMSHRC 299, 306 (May 1979),
which states that the Mine Act "does not permit the Commission
to stay abatement requirements of a citation during litigation."
Id.
The citations at issue in the instant matter were issued
under section 104(a) of the Mine Act. See 21 FMSHRC at 682.
In effect, Nolichuckey's motion requests temporary relief from
abatement. The text of section 105(b)(2)(C) provides in part
that "[n]o temporary relief shall be granted in the case of a
citation issued under subsection (a) or (f) of section 104."
30 U.S.C. � 815(b)(2)(C); see also 29 C.F.R. � 2700.46(a)
(providing that the Commission may not grant temporary relief
with respect to citations issued under section 104(a) of the
Mine Act).
In Pennsylvania Electric Co., 11 FMSHRC 793 (May 1989),
the operator requested that the Commission enjoin MSHA
enforcing citations pending a Commission decision. Id. We
noted that section 105(b)(2) "specifically states that `[n]o
temporary relief shall be granted in the case of a citation
issued under subsection (a) . . . of section [104]' of the
Act." Id. We denied the operator's request, and held that
"the two citations in question were issued under section
104(a) of the Act. Thus, by the express terms of the Act,
temporary relief may not be granted in this case." Id. at
793-94. Similarly, in Utah Power & Light Co., Mining Div.,
11 FMSHRC 953 (June 1989), we held that "the citation from
which temporary relief is sought by [the operator] is a
section 104(a) citation . . . and as such is not within the
purview of section 105(b)(2) relief. Accordingly, [the
operator's] Application for Temporary Relief is denied." Id.
at 958; see also Energy Fuels, Corp., 1 FMSHRC 299, 306 (May
1979) ("Furthermore, the Commission cannot, unless a final
order favorable to Energy Fuels is issued, relieve Energy
Fuels of its responsibilities to continue to maintain the
cited condition in compliance. The 1977 Act does not permit
the Commission to stay abatement requirements of a citation
during litigation.") (citing sections 104(b) and (h),
105(b)(1)(A) and (b)(2) of the Act).
Contrary to Nolichuckey's assertion, section 105(d)
does not require a different result. Section 105(d) provides
that an operator may contest certain issues before a
Commission judge, including the issuance or modification of
an order issued under section 104 or the reasonableness of
the length of abatement time fixed in a citation or
modification thereof issued under section 104. See 30 U.S.C.
� 815(d). However, Nolichuckey currently requests what
amounts to temporary relief from the abatement requirement,
not a review of the reasonableness of the time set for
abatement. Mot. to Stay Abatement at 1. We previously have
applied section 105(b)(2) to operator requests to stay
abatement requirements related to section 104(a) citations.
See Pennsylvania Electric Co., 11 FMSHRC at 793; Utah Power
& Light, 11 FMSHRC at 953. Moreover, Nolichuckey failed to
contest the reasonableness of abatement time, either in its
contest or in its Petition for Discretionary Review.
The plain language of section 105(b)(2) mandates that
we deny the requested relief. However, we find several
circumstances presented by this case troubling. It appears
that the Secretary agreed to extend the abatement period for
the citations at issue here during the pendency of this
litigation. This made sense given that MSHA's position before
the citations were issued was that the operator was in
compliance with the relevant safety standards. 21 FMSHRC at
682 n.2. Indeed, MHSA extended the abatement period until
October 1, 1999 - for a condition cited in January 1999.
MSHA has apparently declined, however, to extend the
abatement period any further, notwithstanding the fact that
the agency apparently decided to re-evaluate its position
regarding the application of 30 C.F.R. � 56.14109(a) to the
guards used by Nolichuckey. Since MSHA is advancing a new
position regarding a specific condition that was previously
deemed in compliance, we believe, in this case, it would be
appropriate and reasonable for MSHA to opt not to press for
abatement.
The Commission is bound, however, by the terms of the
Mine Act, and the Act does not allow us to intervene here
and order the Secretary to continue her forbearance. Instead,
if Nolichuckey wants further vindication, it must risk
defying MSHA's abatement period so that it might obtain a
closure order and institute further proceedings before the
Commission. The Secretary's insistence at this particular
time to require abatement makes little sense - her brief
certainly sheds no light on why abatement is suddenly needed
now. Absent any explanation, we find her position unfortunate
and merely a potential cause of additional litigation.[1]
In sum, and in accordance with Commission case law, we
hold that the provision of temporary reinstatement procedures
in section 105(b)(2) of the Mine Act does not include
temporary relief from section 104(a) citations.
Accordingly, upon consideration of Nolichuckey's motion,
and in accordance with the plain language of section 105(b)(2)
of the Act and Commission Procedural Rule 46(a), we deny the
operator's motion.
James C. Riley, Commissioner
Theodore F. Verheggen,
Commissioner
Robert H. Beatty, Jr.,
Commissioner
**FOOTNOTES**
[1] While our concurring colleagues characterize our
concerns as "gratuitous" and "dabbl[ing] in the affairs"
of MSHA (slip op. at 5), we note that this Commission
has not been reluctant in the past to scrutinize the
Secretary's enforcement activities. See, e.g., Minerals
Exploration Co., 8 FMSHRC 477, 478 (Apr. 1986) ("we express
our strong disapproval of and, as appropriate, serve warning
with respect to some of the activities of certain MSHA
officials and the Secretary's trial counsel"). In fact,
this scrutiny was recently reemphasized by the
Commission in Black Diamond Constr., Inc., 21 FMSHRC __,
No. EAJ 98-1 (Nov. 3, 1999). In Black Diamond, a
Commission majority expressed disapproval of the Secretary's
position in an EAJA case by stating that "it is hardly
reasonable for a litigant to be forced to bear the
considerable cost of defending itself over many months . . .
while an enforcement agency ignores essential information
brought to its attention at the outset." Slip op. at 11.
In light of the Commission's previous willingness to
scrutinize the Secretary's enforcement activities, it is
unfair to characterize our position here as "gratuitous" and
"dabbl[ing] in the affairs"of MSHA. It is important that
all members of the Commission recognize that Congress
established this impartial adjudicative body to, among
other things, "review[] the enforcement activities of the
Secretary" and "provide guidance to [her] in enforcing the
[Mine Act]." Hearing on the Nomination of Members of the
Federal Mine Safety and Health Review Commission before the
Senate Comm. on Human Resources, 95th Cong., 1 (1978). We
are not prepared to join our concurring colleagues in their
willingness to turn a blind eye to this important statutory
responsibility imposed by the Mine Act.
Chairman Jordan and Commissioner Marks, concurring:
We agree with our colleagues that the plain language
of the Mine Act clearly states that an operator may not be
granted temporary relief in a case arising from a citation
issued under section 104(a) of the Act. We are therefore in
accord with the majority's denial of Nolichuckey's motion
to stay abatement, as the operator is requesting a remedy
explicitly precluded by the statute.
We write separately, however, because we wish to
disassociate ourselves from the majority's gratuitous
criticism of the Secretary's decision to require abatement
as of October 1. The judge in this case found six violations
of the regulation mandating stop cords or railings on
conveyor belts. The Secretary, who is charged with enforcing
the Mine Act, has determined that any additional delay in
abating these violations is not warranted. We are most
reluctant to second-guess that decision and announce that
this regulation - designed to ensure the safety of miners
working near the belt - should not now be enforced.
When the majority interpreted - correctly - the clear
language of the Mine Act to mandate the denial of temporary
relief to Nolichuckey, its task was complete. To then opine
on the propriety of the Secretary's enforcement action at
this stage of the proceedings appears to be little more than
the attempt of an adjudicatory agency to dabble in the
affairs of its prosecutorial counterpart. We do not know
why the Secretary agreed to the previous extension of the
abatement period, nor have we been provided with any
information as to what prompted her decision to impose
abatement as of October 1. On the basis of the pleadings
filed in this proceeding, we are unwilling to draw
conclusions about the implications for miner safety if the
abatement period were extended beyond that date.[1]
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
Distribution
Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1] Commissioner Marks also notes:
In light of the fact that Nolichuckey is represented by
competent and experienced counsel, I find that my colleagues'
suggestion to Nolichuckey on how to proceed in order to
obtain "further vindication" against the Secretary is not
only superfluous to the holding in this case but it is
inappropriate, as the Commission is not in the business
of providing legal advice on how to proceed against the
Secretary.