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![handle is hein.usfed/fmshr1979 and id is 1 raw text is: CCASE:
MSHA V. WOLF CREEK COLLIERIES
DDATE:
19790326
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW
WASHINGTON, D.C.
March 26, 1979
RAY MARSHALL, SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
COMMISSION
Civil Penalty Proceeding
Docket No. PIKE 78-70-P
(Assessment Control No. 15-04020-2013V)
V.
WOLF CREEK COLLIERIES COMPANY,
Respondent No. 4 Mine
DECISION
This case arises under the Federal Coal Mine Health and Safety
Act of 1969 .1/ The issue is whether the validity of an order of
withdrawal under section 104(c)(2) can be challenged in a proceeding
under section 109(a)(3) for assessment of a civil penalty for the
alleged violation cited in the order. Wolf Creek did not request
review of the order of withdrawal pursuant to section 105(a); rather,
the first time it questioned the order's validity was at the penalty
assessment hearing. The Administrative Law Judge vacated the
withdrawal order on the ground that the record in this case does
not disclose the precedential notice and order cited by the inspector
in his withdrawal order. 2/ Although he vacated the withdrawal
order, the Judge did find a violation of a mandatory safety standard
and assessed a penalty of $300. In assessing a penalty the Judge
mitigated the amount because he had vacated the withdrawal order in
which the violation was cited.
We have reviewed the decision in light of previous decisions of
the Interior Department's former Board of Mine Operations Appeals
interpreting the 1969 Act. Section 109(a)(3) provided, in relevant
part, that [a] civil penalty shall be assessed by the Secretary [of
the Interior] only after ... a public hearing and the Secretary has
determined ... that a violation did occur, and the amount of the
penalty which is warranted, ... 3/ The Board consistently held that
the validity of a
1/ 30 U.S.C. $ 801 et seq. (1976) (amended 1977) (the 1969 Act).
This case presents no issue under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. $ 801 et seq. (1978).
2/ Section 104(c)(2) of the 1969 Act provided, in relevant part:
If a withdrawal order with respect to any area in a mine](ViewImageLocal?handle=hein.usfed/fmshr1979&div=1&collection=&method=preview&ext=.png&size=3)