AND SAFETY ACT OF 1969-Con. ADMINISTRATIVE PROCEDURE-Con.
1. Section 556 (c) (5) of the Ad- ministrative Procedure Act grants wide latitude to Administrative Law Judges to regulate the course of the hearing including the order of proof. In the absence of clear abuse, the ruling of an Administrative Law Judge assigning the ini- tial burden of going for- ward will not be overturned..
Proposed Findings, Con-
clusions or Exceptions
1. The requirement of the Ad- ministrative Procedure
Act, that the record shall show the ruling on each finding, conclusion, or ex- ception presented, can be satisfied without a specific separate ruling on each proposed finding, conclusion or exception; provided the total de- cision sufficiently informs a party of the disposition of all its proposed findings and conclusions or excep- tions. 5 U.S.C. § 557 (c) --
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con.
APPEALS-Con.
Generally-Con.
circumstances advanced by the operator in de- termining the assessment of penalties, and where appellant's arguments have been fully and fairly considered by the Judge, the Board will not dis- turb the Administrative Law Judge's decision_... 3. The Board will not disturb the findings and con- clusions of an Adminis- trative Law Judge in the absence of a showing that the evidence compels a different result_
CLOSURE ORDERS
Imminent Danger
1. Where a Bureau of Mines inspector observed an "imminently dangerous" condition, immediately. issued an order of with- drawal pursuant to sec- tion 104(a) of the Act, remained on the scene until in his judgment the danger was elimi- nated, and then lifted the order so that normal mining operations could be resumed, he acted in a reasonable, proper and lawful manner.
2. Regardless of the unavail-
ability of equipment, materials, or qualified technicians, an inspector is obliged to issue an order of withdrawal under sec- tion 104(a) of the Act, where, upon any inspec- tion of a coal mine, he
Law Judge fails to make the required express find- ings of fact regarding any of the six statutory criteria, required by sec- tion 109(a)(1) of the Act, to be considered in deter- mining the amount of a penalty warranted, in lieu of a remand, the Board may make the appro- priate findings for the Department in accord- ance with the evidence of record. 30 U.S.C. § 819(a) (1)...
an Administrative Law Judge makes find- ings of fact regarding any of the six statutory criteria required by sec- tion 109(a)(1) of the Act to be considered in deter- mining the amount of the penalty warranted, but in so doing, ignores or fails to properly apply the evidence of record, the Board may substitute its findings to coincide with the evidence and adjust the amount of the penalty assessed accord- ingly. 30 U.S.C. § 819(a) (1).
1. A penalty proceeding before an Administrative Law Judge is a de novo pro- ceeding in which the amount of a penalty as- sessed is determined on the basis of the evidence presented without regard to any assessment pro- posed by the Assessment
FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969-Con. HEARINGS-Con.
1. In a proceeding to review an imminent danger order of withdrawal, the operator, as the applicant, bears the burden of proof, under 43 CFR 4.587, with re- spect to both the thresh- old issue of no danger and the issue of no imminence. If the operator bears the burden of proving either issue by a preponderance of the evidence, it pre- vails...
2. Whether a condition or prac- tice constitutes a viola- tion of a mandatory health or safety standard is not an issue in a pro- ceeding to review an imminent danger with- drawal order and MESA has no burden, under 43 CFR 4.587, of proving whether the danger in- volved is a violation _____
3. While the burden of proving
unavailability of equip- ment, materials, or quali- fied technicians required to comply with a man- datory health or safety standard is normally upon the operator, where the government's proof establishes such unavailability, the oper- ator is relieved of the burden and may rely upon the government's evidence...
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con.
HEARINGS-Con.
Procedure-Con.
followed by the assess-
ment officer under 30 CFR Part 100 and does not relate to the hearing
procedure pursuant to 43 CFR Part 4_______
5. A party's right to withdraw a pleading is determined under the rules in effect at the time such right is ex- ercised___
6. An Administrative Law Judge
may not vacate an order of withdrawal in a civil penalty proceeding held. pursuant to (a)(3)_ _
7. Where, under 43 CFR 4.512,
an operator withdraws its petition for hearing and formal adjudication after the close of an eviden- tiary hearing, but, prior to issuance of a final de- cision, it is not entitled to a dismissal without prej- udice..
8. An Administrative Law Judge may not vacate an order of withdrawal in a civil penalty proceeding held pursuant to section 109 (a) Summary Decisions
1. An Administrative Law Judge
may not issue a summary decision upon his own motion based upon an
which relates only to the
order to show cause, be- cause the governing regu- lation, 43 CFR 4.590, re-
validity of the procedures
quires a moving party - - -
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. HEARINGS-Con.
Summary Decisions-Con.
2. In a proceeding to review an imminent danger with- drawal order, an Admin- istrative Law Judge may not grant summary de- cision to the applicant where the record is devoid of evidence, there is a general denial of the alle- gations contained in the Application for Review, and there is a conceivable set of facts which the evi- dence may reveal which would support the posi- tion of the opponent of summary decision............... Waiver
1. Where there are disputed is- sues of material fact,
an Administrative Law Judge, may not grant summary decision unless there is an express waiver of hearing. 43 CFR 4.588 IMMINENT DANGER 1. The statutory definition of
"imminent danger" (sec- tion 3(j) of the Act) must be read in its entirety without picking out indi- vidual words or phrases and also must be con- strued in conjunction with section 104(a) of the Act providing for the issuance of imminent danger orders...
2. An "imminent danger" ex- ists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining opera- tions were permitted to proceed in the affected
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. IMMINENT DANGER-Con.
area of the coal mine before the dangerous con- dition is eliminated; thus, the dangerous condition cannot be divorced from the normal work activity. 3. An "imminent danger" exists where the cited condition
or practice would war- rant the conclusion by a reasonable man that, at the time of issuance, a proximate peril to life or limb existed and that, if normal operations to extract coal continued, a serious accident or disaster would be likely to occur before abate- ment.
4. Where an inspector observes accumulations
coal dust throughout an
area approximately 7200 feet in length in a coal mine with a history of unpredictable releases of methane and at least one prior dust explosion, he is warranted in issuing an imminent danger with- drawal order.......... Proximate Peril
1. A proximate peril to life or limb exists where a reasonable man would conclude that the facts indicate an impending ac- cident or disaster, threat- ening to kill or to cause serious physical harm, likely to occur at any moment, but not neces- sarily immediately._____
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