IN THE MATTER OF WESTERN

SLOPE CARBON, INC. (HAWKS NEST NO. 3 MINE)*

2 IBMA 161

Decided July 16, 1973

Petitions for Assessment of Civil Penalty.

Federal Coal Mine Health and Safety Act of 1969: Hearings: Procedure

A hearing instituted by an operator with respect to notices of violation shall not be dismissed on motion by the operator when based upon National Independent Coal Operators Association et al. v. Morton et al., Civil Action No. 397-72 (D.C. Dist. of Col. March 9, 1973), which relates only to the validity of the procedures followed by the assessment officer under 30 CFR Part 100 and does not relate to the hearing procedure pursuant to 43 CFR Part 4.

INTERIOR BOARD OF MINE OPERATIONS APPEALS

MEMORANDUM OPINION
AND ORDER

The Board has before it for consideration a ruling certified by Administrative Law Judge Graydon E. Holt filed May 22, 1973, pursuant to 43 CFR 4.591. The ruling arises in the Judge's order, which follows, denying Western Slope's motion to dismiss the above-entitled proceedings:

*Not in Chronological Order.

Following the scheduling of a hearing Western Slope Carbon, Inc., filed motions for dismissal of the above-numbered proceedings. The motions are based on a decision of the U.S. District Court for the District of Columbia, National Independent Coal Operators Association et al. v. Rogers C. B. Morton, Secretary of the Interior, et al., Civil Action No. 397-72, March 9, 1973, in which the Court held that the assessment officer failed to investigate or take into account the criteria required by section 109 of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 3801 et seq. (1970). The Bureau of Mines opposed the motions.

Civil Action No. 397-72 relates only to the validity of the procedure followed by the assessment officer under 30 CFR Part 100, and does not relate in any way to the hearing procedure pursuant to 43 CFR Part 4.

The Board is in agreement with the Judge that the ruling certified presents a controlling question of law and that a decision by the Board will materially advance the ultimate disposition of the proceedings below. The Board is further of the opinion that the Judge's disposition of the motions to dismiss were adequate and correct in fact and law.

WHEREFORE, pursuant to 43 CFR 4.591, the Board ACCEPTS the Judge's certified ruling in the above-entitled matter, which IS HEREBY AFFIRMED.

C. E. ROGERS, JR., Chairman.

DAVID DOANE, Member.

528-755-73-1

80 I.D. No. 11

IN THE MATTER OF RANGER

FUEL CORPORATION (MINE A, MINE B AND MINE D)*

2 IBMA 163

Decided July 17, 1973

Certification of Interlocutory Ruling.

Federal Coal Mine Health and Safety Act of 1969: Hearings: Procedure

A party's right to withdraw a pleading is determined under the rules in effect at the time such right is exercised.

INTERIOR BOARD OF MINE OPERATIONS APPEALS

MEMORANDUM OPINION AND ORDER

On June 14, 1973, Administrative Law Judge (Judge) Paul Merlin denied Ranger's motion to withdraw its request for hearing in the above-listed proceedings and certified his ruling to the Board pursuant to 43 CFR 4.591. That section provides the following:

In making a ruling which does not finally dispose of a proceeding, the Examiner [now Administrative Law Judge] shall at the request of a party or may on his own motion certify his ruling to the Board of Mine Operations Appeals if he determines that such ruling involves a controlling question of law and that an immediate appeal therefrom may materially advance the ultimate disposition of the matter before him.

The Judge concluded that both prerequisites had been met.

*Not in Chronological Order.

Ranger Fuel Corporation (Ranger), after receipt of the proposed assessment, timely filed a request for hearing under the procedure in effect at that time which was set forth in 30 CFR 100.4 (i) (1). In response the Bureau of Mines (Bureau) filed a petition for assessment of civil penalty on March 9, 1972. On April 24, 1973, Ranger sent a telegram to the Judge withdrawing its request for hearing as a matter of right under 43 CFR 4.512. At that time the rule provided that "a party may withdraw a pleading at any stage of a proceeding without prejudice." A special appearance to plead withdrawal was entered before the Judge on the following day.

Part 100 of 30 CFR was suspended effective April 24, 1973, and new regulations were instituted to provide that the Bureau shall petition for hearing of penalty cases where payment is not made; however, it was not until May 30, 1973, that 43 CFR 4.512 was amended to provide that a request for hearing in penalty cases may be withdrawn only with the consent of the Bureau.

We believe that a controlling question of law has properly been certified to the Board, a decision on which would materially advance the outcome of these proceedings.

Ruling of the Board

The rights of the parties must be viewed as of the time they were exercised. Ranger's motion to withdraw its request for hearing was