ALJ Finds Federal Mine Safety And Health Commission Has Authority To Review Validity of Safeguards Even Where No Citation Has Been Issued

An ALJ for the Federal Mine Safety and Health Review Commission held that the Commission has the authority to review MSHA safeguards prior to the issuance of citations or orders.  The ALJ, ruling on a motion to dismiss a coal company’s notice of contest to a MSHA safeguard, found that the Mine Act granted the Commission implied authority to determine the validity of a safeguard even if no subsequent citation or order had been issued.

Because the Commission has express authority to review safeguards when deciding a citation, the ALJ determined that the Mine Act necessarily implies that the Commission can consider the underlying safeguard without a corresponding citation or order.  The ALJ analogized the situation to the Commission’s implied ability to review MSHA program policy letters as a result of its direct authority to oversee contest hearings.

The ALJ further noted that due process and public policy mandated this outcome, explaining that MSHA safeguards were mandatory and required operators to correct hazardous conditions.  Thus, safeguards constrain or adversely affect operators at issuance, not just when an operator is cited for a violation of the safeguard.  Because the impact of the safeguard is immediate, the ALJ found that operators’ rights might be harmed if they could not challenge the safeguard prior to violating it and being cited.  Additionally, the ALJ noted that public policy dictated that the Commission have jurisdiction because it would protect miners from harms that might occur if an operator refused to implement a safeguard for purposes of receiving a citation that could be challenged.  Likewise, the ALJ noted that having the Commission hear safeguard challenges soon after they are issued would also ensure that all challenges are handled in timely manner.