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FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
ADMINISTRATIVE PROCEDURE Con.
Hearings
Order of Proof

Page
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.

610
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,
be satisfied without
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)-- 631
APPEALS

Generally
1. The Board will not disturb

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
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
"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

a finding of an Adminis-
trative Law Judge in the
absence of a showing that
the evidence compels a
different finding-..

439
2. Where the Administrative

Law Judge has taken into
consideration mitigating

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

can

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FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
CLOSURE ORDERS-Con.
Imminent Danger-Con.

finds that an imminent
danger exists. 30 U.S.C.

$$ 814(a), 814(h).
3. Presence of 1.5 volume per

centum or more of meth-
ane supports issuance of
section 104(a) With-

drawal Order.
ENTITLEMENT OF MINERS

Discharge

Burden of Proof
1. Proof by a discharged miner

that he has notified only a
member of the mine
safety committee of an
alleged violation or dan-
ger without showing a
notice

instigation
thereof to the Secretary
or his authorized repre-
sentative fails to sustain
the burden of proving a
violation of section 110(b)

(1)(A) of the Act...
EVIDENCE

Sufficiency
1. A visual observation will

support a violation of sec-
tion 304(a)-accumula-

tion of coal dust ---
2. Where a notice of violation

of section 304(a) of the
Act shows no indication
of the depth or extent of
an accumulation of com-
bustible material, and
MESA's sole witness, the
the inspector who issued
the notice, has no present
recollection of the condi-
tion, for which the notice
was issued, the evidence
is insufficient to con-
stitute

a prima facie

FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
FINDINGS
1. Where Administrative

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. 8 819(a)

(1)
2. Where 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).
HEARINGS

Generally
1. A penalty proceeding before

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
Officer...

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FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
HEARINGS-Con.

Burden of Proof
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
imminent danger with-
drawal order and MESA
has no

no burden, under
43 CFR 4.587, of proving
whether the danger in-
volved is a violation -----

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610

FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
HEARINGS-Con.

Consolidation
1. Where, in a hearing on ap-

plication for review (sec-
tion 105), both parties
agree that the identical
contentions of facts and
law would be offered in

assessment of civil
penalty proceeding (sec-
tion 109) presently pend-
ing, the Administrative
Law Judge has the au-
thority to consolidate the

proceedings...

Decisions
1. A Notice of Violation of 30

CFR 75.400 will be up-
held where the unrefuted
testimony of the Bureau
of Mines Inspector shows
an accumulation of float
coal dust in a belt con-

veyor entry----
Powers of Administrative

Law Judges
1. An Administrative Law

Judge has no authority to
convert an

imminent
danger order of with-
drawal to a notice of

violation...
2. The Administrative Law

Judge properly denied
the motion of an operator
to suppress evidence ob-
tained in the course of a
coal-mine inspection,
where such motion is
based on the ground that
the inspector violated
the Fourth Amendment
prohibition against un-
reasonable searches, since

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FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969—Con.
HEARINGS-Con,
Power of Administrative
Law Judges-Con.

administrative tri-
bunal has no authority
to pass on constitutional
questions.

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707

708

604

716

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 section 109

(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
order to show cause, be-
cause the governing regula
lation, 43 CFR 4.590, re-
quires a moving party-..

Procedure
1. Upon service on the operator

of a petition for assess-
ment of a civil penalty
founded upon a request
for hearing the juris-
diction of the Office of
Hearings and Appeals
(OHA) vests and the
request for hearing, not
being a pleading, cannot

be withdrawn --
2. An Administrative Law

Judge does not have the
power or authority to
convert an order of with-
drawal to a notice of

violation.
3. An Administrative Law

Judge may not vacate an
order of withdrawal in a
civil penalty proceeding
held pursuant to section

109(a)(3)--
4. A hearing instituted by an

operator with respect to
notices of violation shall
not be dismissed on mo-
tion by the operator when
based upon National In-
de pendent Coal Operators'
Association et al. v. Mor-
ton et al., Civil Action No.
397-72 (D.C. Dist. of
Col. March 9, 1973),
which relates only to the
validity of the procedures

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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-

of material fact,

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,

serious accident
disaster would be likely
to occur before abate-

ment..
4. Where an inspector observes

accumulations of float
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

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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