FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710

POCAHONTAS COAL COMPANY,
LLC

CONTEST PROCEEDING

Docket No.: WEVA 2014-395-R

Contestant, Order No.: 3576153; 12/19/13

ve

U.S. SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Respondent.
U.S. SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

CIVIL PENALTY PROCEEDING

Docket No.: WEVA 2014-1028
Docket No.: WEVA 2015-854
Petitioner

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POCAHONTAS COAL COMPANY, Mine ID No.: 46-08878
LLC Mine: Affinity Mine
Respondent. Commission
CERTIFICATE OF SERVICE

I hereby certify that a copy of the forgoing MOTION TO WITHDRAW PETITION
FOR DISCRETIONARY REVIEW upon the parties on the 10th day of July, 2018, via
FMSHRC e-filing and electronic mail (where indicated) to:
Lisa M. Boyd
Executive Director
Federal Mine Safety and Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710

13070281v2


8. The parties agree to execute this Agreement in Counterparts.

Kate O. Scannlain

Robert H. Beatty, Jr., Esq. Solicitor of Labor
Jason M. Nutzman, Esq.
Attorneys for Pocahontas Coal Co., LLC April E. Nelson

Associate Solicitor

Paul Konstanty, Esq.
General Counsel
United Coal Company
Ali A. Beydoun

Zé, Appellate Litigation

Edward Waldman
Attorney

Attorneys for the Secretary of Labor,

Mine Safety and Health
Administration

FILED UNDER SEAL


EXHIBIT 1


The Honorable Margaret A. Miller
Administrative Law Judge
Federal Mine Safety and
Health Review Commission
721 19th St., Suite 443
Denver, Colorado 80202-2500

W. Christian Schumann
Office of the Solicitor
U.S. Department of Labor
201 12th Street - Suite 500
Arlington, Virginia 22202-5450
schumann.walter@dol.gov

Ed Waldman
Office of the Solicitor
U.S. Department of Labor
201 12th Street - Suite 500
Arlington, Virginia 22202-5450
waldman.edward@dol.gov

Jason Grover
Office of the Solicitor
U.S. Department of Labor
201 12th Street — Suite 500
Arlington, Virginia 22202-5450
grover.jason@dol.gov

s/Jason M, Nutzman

Jason M. Nutzman

130702812


8. The parties agree to execute this Agreement in Counterparts.

Robert H. Beatty, Jr., Esq.
Jason M. Nutzman, Esq.
Attorneys for Pocahontas Coal Co., LLC

Phul A. Konstanty? Esq.
Vice President and Geng ginsel
United Coal Company

Kate O. Scannlain
Solicitor of Labor

April E. Nelson
Associate Solicitor

Ali A. Beydoun
Counsel, Appellate Litigation

Edward Waldman
Attorney

Attorneys for the Secretary of Labor,

Mine Safety and Health
Administration

FILED UNDER SEAL


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710

POCAHONTAS COAL COMPANY,
LLC

Contestant,
v.
U.S. SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Respondent.
U.S. SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

v.

POCAHONTAS COAL COMPANY,
LLG

Respondent.

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CONTEST PROCEEDING

Docket No.:_ WEVA 2014-395-R
Order No.: 3576153; 12/19/13

RECEIVED
DOCKET OFFICE

JUL 10 2018

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

CIVIL PENALTY PROCEEDING

Docket No.: WEVA 2014-1028
Docket No.: WEVA 2015-854

Mine ID No.: 46-08878
Mine: Affinity Mine
Commission

MOTION TO WITHDRAW PETITION FOR DISCRETIONARY REVIEW

Pocahontas Coal Company, LLC (“Pocahontas”), by and through its undersigned

counsel, and pursuant to Federal Mine Safety and Health Review Commission (“Commission”)

Procedural Rule 10, 29 C.F.R. § 2700.10, and Commission Procedural Rule 11, 29 C.F.R.

§ 2700.11, hereby moves for an order granting its Motion to Withdraw Petition for Discretionary

Review as more fully set forth below. Pocahontas files this motion under seal.

13070281v2


8. The parties agree to execute this Agreement in Counterparts.

yee

Kate O. Scannlain

Robert H. Beatty, Jr., Esq. Solicitor of Labor
Jason M. Nutzman, Esq.
Attorneys for Pocahontas Coal Co., LLC April E. Nelson

Associate Solicitor

Paul Konstanty, Esq.
General Counsel
United Coal Company
Ali A. Beydoun
Counsel, Appellate Litigation

Edward Waldman
Attorney

Attorneys for the Secretary of Labor,

Mine Safety and Health
Administration

FILED UNDER SEAL


AGREEMENT

. This Agreement is being entered into between Pocahontas Coal Company LLC
(“Pocahontas”) and the Mine Safety and Health Administration (“MSHA”) on June 29,
2018 (collectively “Parties”).

. The Parties have agreed to end the matter currently pending before the Federal Mine Safety
and Health Review Commission (“Commission”) in Pocahontas Coal Company, LLC v.
US. Secretary of Labor, Mine Safety and Health Administration (MSHA), WEVA 2014-
395-R, et. al. (“the Proceeding”).

. By entering into this Agreement Pocahontas hereby agrees to file with the Commission a
Motion to Withdraw Appeal in the Proceeding.

._ In exchange for Pocahontas filing a Motion to Withdraw Appeal in the Proceeding, and the
Commission’s issuance of a full, clear, and unambiguous dismissal of the Proceeding,
MSHA agrees to immediately terminate Notice of Pattern of Violations Number 7219153
issued at the Affinity Mine on October 24, 2013, and provide prompt written
acknowledgment of the same to Pocahontas.

. The Commission’s refusal to fully dismiss the Proceeding renders this Agreement null and
void and the parties shall be returned to their original positions in the Proceeding, prior to
entering this Agreement, to include waiting on consummation of Pocahontas’ appeal before
the Commission, any remand or direction by the Commission, or any additional appeals to
the United States Court of Appeals and beyond.

. The Parties will bear their own attorney’s fees and litigation expenses for the Proceeding.

. The Parties agree to keep the contents of this Agreement confidential until such time as the
Commission issues a full, clear, and unambiguous dismissal of the Proceeding.

FILED UNDER SEAL


CONCLUSION

For the reasons set forth above Pocahontas requests that the Commission issue an order

granting its Motion to Withdraw Petition for Discretionary Review.

Respectfully submitted,

POCAHONTAS COAL COMPANY, LLC
Contestant,

BY COUNSEL

s/Jason M. Nutzman

JASON M. NUTZMAN
DINSMORE & SHOHL LLP
Huntington Square, 900 Lee Street
Suite 600

Charleston, WV 25301
304.357.9938

304.357.0919 (fax)

jason.nutzman@dinsmore.com

ROBERT HUSTON BEATTY, JR.
DINSMORE & SHOHL LLP

801 Pennsylvania Avenue, N.W.
Suite 310

Washington, D.C. 20004
202.372.9100

304.296.6116 (fax)

Date: July 10, 2018 robert.beatty@dinsmore.com

130702812


appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by
the court”).!

Commission precedent sets forth the right of a party to request permission to withdraw its
petition for discretionary review. See Speed Mining, Inc., 27 FMSHRC 286 (Mar. 2005)
(granting motion to withdraw petition for discretionary review filed pursuant to Commission
Rules 10 and 11); Newmont Gold Company, 21 FMSHRC 564 (June 1999) (granting motion to
withdraw as it neither disturbed the holdings of the judge nor the penalties assessed); Thunder
Basin Coal Company, 1996 WL 354599 (June 1996) (granting unopposed motion to withdraw

petition for discretionary review); RNS Services, Inc., 18 FMSHRC 115 (Feb. 1996) (granting

unopposed motion to withdraw petition for discretionary review); Jim Walter Resources, Inc., 9

FMSHRC 390 (Mar. 1987) (granting unopposed motion to withdraw petition for discretionary

review and to dismiss proceeding); Russell Collins and Virgil Kelley, 5 FMSHRC 1671 (Oct.

1983) (granting motion to withdraw petition for discretionary review).
The Commission has also recognized that a proceeding “no longer present[s] a justiciable
controversy” and “[a] case is moot when the issues presented no longer exist or the parties no

longer have a legally cognizable interest in the outcome.” See Brent Roberts, 20 FMSHRC 1245,

1247-48 (Nov. 1998); see also Youghiogheny & Ohio Coal Company, 7 FMSHRC 200 (Feb.

1985) (finding adequate reason to grant motion to dismiss proceeding filed by Secretary after
petition for discretionary review filed by operator when “there is no longer a true adversarial

contest suitable for judicial resolution”).

' Commission Rule 1(b) provides that Federal Rules of Civil Procedure and Federal Rules of
Appellate Procedure shall apply “so far as practicable” in absence of applicable Commission
tules. See 29 C.F.R. § 2700.1(b).

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INTRODUCTION

On October 24, 2013, the Mine Safety and Health Administration (“MSHA”) issued
Section 104(e)(1) Written Notice Number 7219153 (“POV Notice”) to Pocahontas’ Affinity
Mine alleging a pattern of violations (“POV”) existed at the mining operation. MSHA issued the
POV notice pursuant to Section 104(e)(1) of the Federal Mine Safety and Health Act of 1977
(“Mine Act”) (30 U.S.C. § 814(e)(1)). On December 31, 2015, Pocahontas filed with the
Commission a Petition for Discretionary Review (“PDR”) pursuant to Commission Procedural
Rule 70 (29 C.F.R. § 2700.70). This PDR related to the POV Notice and two decisions issued by
Administrative Law Judge on November 3, 2015 and December 24, 2015.

The parties have now negotiated a compromise of this matter and have agreed to resolve
the issues raised in Pocahontas’ PDR and the related briefs before the Commission. Accordingly,
Pocahontas respectfully moves the Commission for an order granting its Motion to Withdraw
Petition for Discretionary Review and states each party will bear its own costs and fees in these
proceedings. A copy of the Settlement Agreement is filed separately under seal to this motion as
Exhibit 1. Counsel for Pocahontas has informed counsel for the Secretary of its intent to file this
motion.

ARGUMENT

Pocahontas seeks to withdraw its PDR based entirely on the terms of the Settlement
Agreement between the parties. Commission Procedural Rule 11 provides that “[a] party may
withdraw a pleading at any stage of a proceeding with the approval of the Judge or the

Commission.” See 29 C.F.R. § 2700.11; see also Fed. R. App. P. 42(b) (noting in part that “[a]n

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