13137901v1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

POCAHONTAS COAL COMPANY, ) CONTEST PROCEEDING

LLC )

) Docket No.: WEVA 2014-395-R

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

)

v. )

)

U.S. SECRETARY OF LABOR, )

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) )

)

Respondent. )

)

U.S. SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) ) Docket No.: WEVA 2014-1028

) Docket No.: WEVA 2015-854

Petitioner )

)

v. )

) 

POCAHONTAS COAL COMPANY, ) Mine ID No.: 46-08878

LLC ) Mine: Affinity Mine

)

Respondent. ) Commission

POCAHONTAS COAL COMPANY, LLC’S RESPONSE TO COMMISSION’S JULY 19, 

2018 ORDER

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

counsel, responds to the Federal Mine Safety and Health Review Commission’s (“Commission”) 

July 19, 2018, order as follows:

On July 26, 2018, the Secretary of Labor (“Secretary”) filed a Response to the 

Commission’s July 19, 2018, Order. In his Response the Secretary elected to remove the seal 

from his July 17, 2018, Response in Support of Pocahontas’ Motion to Withdraw Petition for 

Discretionary Review and supporting agreement.
13137901v1

2

Given the Secretary’s position, and Pocahontas’ desire to move this matter forward, 

Pocahontas agrees to lift its request to seal its complete July 10, 2018, filing. Pocahontas believes 

the parties’ current positions collectively remove the seal issue from further consideration in this 

matter.

Accordingly, Pocahontas is providing clean copies of all documents in its July 10, 2018, 

filing removing the “under seal” designation. Pocahontas respectfully requests the Commission 

rule on its motion. 

Respectfully submitted,

POCAHONTAS COAL COMPANY, LLC

Contestant,

BY COUNSEL

s/Jason M. Nutzman

JASON M. NUTZMAN

DINSMORE & SHOHL LLP

707 Virginia Street East

Suite 1300 

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 26, 2018 robert.beatty@dinsmore.com
13137901v1

3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

POCAHONTAS COAL COMPANY, ) CONTEST PROCEEDING

LLC )

) Docket No.: WEVA 2014-395-R

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

)

v. )

)

U.S. SECRETARY OF LABOR, )

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) )

)

Respondent. )

)

U.S. SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) ) Docket No.: WEVA 2014-1028

) Docket No.: WEVA 2015-854

Petitioner )

)

v. )

) 

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 POCAHONTAS COAL COMPANY, 

LLC’S RESPONSE TO COMMISSION’S JULY 19, 2018 ORDER upon the parties on the 

26th 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
13137901v1

4

The Honorable Margaret A. Miller

Administrative Law Judge

Federal Mine Safety and

Health Review Commission

721 19th St., Suite 443

Denver, Colorado 80202-2500

Ed Waldman

Office of the Solicitor

U.S. Department of Labor

201 12th Street – Suite 500

Arlington, Virginia 22202-5450

waldman.edward@dol.gov

s/Jason M. Nutzman

Jason M. Nutzman
13070281v2

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

POCAHONTAS COAL COMPANY, ) CONTEST PROCEEDING

LLC )

) Docket No.: WEVA 2014-395-R

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

)

v. )

)

U.S. SECRETARY OF LABOR, )

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) )

)

Respondent. )

)

U.S. SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) ) Docket No.: WEVA 2014-1028

) Docket No.: WEVA 2015-854

Petitioner )

)

v. )

) 

POCAHONTAS COAL COMPANY, ) Mine ID No.: 46-08878

LLC ) Mine: Affinity Mine

)

Respondent. ) 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.
13070281v2

2

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 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 
13070281v2

3

appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by 

the court”).

1

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”). 

 

1 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 

rules. See 29 C.F.R. § 2700.1(b).
13070281v2

4

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
13070281v2

5

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

POCAHONTAS COAL COMPANY, ) CONTEST PROCEEDING

LLC )

) Docket No.: WEVA 2014-395-R

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

)

v. )

)

U.S. SECRETARY OF LABOR, )

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) )

)

Respondent. )

)

U.S. SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH )

ADMINISTRATION (MSHA) ) Docket No.: WEVA 2014-1028

) Docket No.: WEVA 2015-854

Petitioner )

)

v. )

) 

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

6

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



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 

 Counsel, Appellate Litigation 

 ________________________ 

 Edward Waldman 

 Attorney 

Attorneys for the Secretary of Labor, 

Mine Safety and Health 

Administration