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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.