JULY AND AUGUST 2009

COMMISSION DECISIONS AND ORDERS
07/07/2009
07/09/2009
07/13/2009
07/14/2009
07/14/2009
07/14/2009
07/17/2009
07/17/2009
07/20/2009
07/20/2009
07/20/2009
07/20/2009
07/20/2009
0712012009
07/21/2009
07/24/2009
07/24/2009
07/31/2009
07/31/2009
07/31/2009
08/04/2009
08/06/2009
08/11/2009
08/13/2009
08/13/2009
08/13/2009
08/13/2009
08/13/2009
08/19/2009
08/19/2009
08/19/2009
08/19/2009
08/25/2009
0812512009
08/26/2009
08/27/2009
08/27/2009
08/28/2009
08/28/2009

Armstrong Coal Company
Big River Mining, LLC.
Stacy Lynn Coal, LLC.
Coal River Mining, LLC.
Detroit Salt Company, LLC.
Oil-Dri Production Company
Manalapan Mining Company
Rock N Road Quarry
C.S.A. Mining Incorporated
Petroleum Fueling, Inc.
Left Fork Mining Co., fuc.
Spartan Mining Company, Inc.
Morris, fuc.
Lehigh Northeast Cement Co.
Ash Grove Cement Company
Quality Aggregates, fuc.
Bresee Trucking Co., fuc.
Newmont USA Limited
Michael Will employed by Chemical Lime of AL
McCoy Elkhorn Coal Corporation
Eastern Associated Coal, LLC.
SCP Investments, LLC.
Rockhouse Energy Mining Co.
Panzer Coal Inc.
Consolidated Container Co., LP
Chemical Lime Company of Alabama
Newmont USA Limited
Myrick Construction Co., Inc.
Michael Diamond
South Ridge Granite Quarry
Pacific Rock Products, LLC.
Penny Creek Quany, LLC.
Freedom Energy Mining Co.
Double Bonus Coal Company
Pine Ridge Coal Company, LLC.
Oglebay Norton Industrial Sands, Inc.
Mettiki Coal, WV, LLC.
Oil-Dri Production (reconsideration)
Mach Mining, LLC.

i

Pg. 745
KENT 2009-419
WEVA2009-1
Pg. 749
WEVA 2009-1036
Pg. 752
WEVA 2009-966
Pg. 756
LAKE 2009-388-M
Pg. 759
SE 2009-293-M
Pg. 762
KENT2009-9
Pg. 765
WEST 2008-561-M,
Pg. 769
KENT 2009-573
Pg. 773
WEVA 2009-1035-M Pg. 777
KENT 2009-1111
Pg. 780
Pg. 785
WEVA 2009-764
CENT2009-l
Pg. 789
YORK 2009-83-M
Pg. 793
CENT 2009-786-M
Pg. 797
PENN 2009-408-M
Pg. 800
· .. Pg. 804
VA 2009-46
WEST 2009-395-M
Pg. 808
SE 2009-550-M
Pg.812
KENT 2009-1128
Pg. 815
WEVA 2009-1562
Pg.818
SE 2006-148-M
Pg. 821
KENT 2008-1363
Pg. 847
KENT 2009-1032
Pg.852
SE 2009-551-M
Pg.855
SE 2009-552-M
Pg. 858
WEST 2009-396-M
Pg.862
SE 2008-961-M
Pg.867
KENT 2009-1224
Pg.870
SE 2009-625-M
Pg.873
WEST 2009-1003-M
Pg.877
WEST 2009-1016-M
Pg.880
KENT 2009-924
Pg. 883
WEVA 2008-879
Pg.886
WEVA 2009-1592
Pg. 905
LAKE 2009-143-M
Pg.908
WEVA 2009-423
Pg. 911
SE 2009-293-M
Pg.914
LAKE 2009-395-R
Pg. 918

ADMINISTRATIVE LAW JUDGE DECISIONS

07/14/2009
07/28/2009
07/30/2009
08/07/2009
08/21/2009

Marfork Coal Company
Black Hills Bentonite, LLC.
Jim Walter Resources, Inc.
Milestone Materials, Div. of Mathy Constr.
East Tennessee Zinc Company, LLC.

WEVA 2008-564-R
WEST 2008-660-M
SE 2009-500-R
LAKE 2009-432-RM
SE 2008· 130-M

Pg.923
Pg.926
Pg.932
Pg. 939
Pg.941

LAKE 2009-323-R
WEST 2008-939
KENT 2009-302-D
KENT 2009-302-D

Pg.947

ADMINISTRATIVE LAW JUDGE ORDERS

07/15/2009
07/23/2009
07/24/2009
08/31/2009

Mach Mining, LLC.
<JenvvalResources,Inc.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.

ii

Pg.956

Pg.961
Pg.972

JULY AND AUGUST 2009

Review was granted in the following cases during the months of July and August 2009:
Secretary of Labor, MSHA v. Wolf Run Mining Company, Docket Nos. WEVA 2008-853, 854,
WEVA 2007-666. (Judge Feldman, June 10, 2009)
Secretary of Labor, MSHA v. Dynamic Energy, Inc., Docket No. WEVA 2007-448-R. (Judge
Bulluck, June 17, 2009)
Secretary of Labor, MSHA v. Nally & Hamilton Enterprises, Inc., KENT 2008-712. (Judge Feldman,
June 23, 2009)

Review was denied in the following cases during the months of July and August 2009:
Vumun Edwurd Jaxun v. Asarco, LLC, Docket No. WEST 2007-811-DM. (Chief Judge Lesnick,
May 29, 2009)
Secretary of Labor, MSHA v. Walter Kuhl, Docket Nos. PENN 2008-112-M, PENN 2008-165-M.
(Judge Melick, June 29, 2009)

iii

COMMISSION DEQSIONS AND ORDERS

Fl;DERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION
601 NEW ~ERSEY AVENUE, NW.
SUITE9500
WASHINGTON, DC 20001

July7, 2009
·Docket No. KENT 2009-419
A.C. No. 15-18552-160177

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA) .

··Docket No. KENT 2009-420
AC. No~ 15-18552-165855

v.

Docket No. KENT 2009-421
A~C. No. 15-19217-165874

ARMSTRONG COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 12, 2008, the Commission received from
Armstrong Coal Company ("Armstrong") a Jetter seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105{a) of the Mine Act, 30 U.S.C.
§ 815(a). 1
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to
reopen final section 105{a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2009-419, KENT 2009-420, and KENT 2009-421, all
captioned Armstrong Coal Company and involving similar procedural issues. 29 C.F.R.
§ 2700.12.
31 FMSIIR.C 745

Federal Rules of Civil l>rocedllTe unde~ which, fo~ example, a party dollld be entitled to relief
from a final order of the Commission on the basis of mistake/inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) (''the Commissionand its·Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On August 13; 2008, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000160177 for alleged violations occurring at
Armstrong's Big Run Mine. On October 15, 2008, MSHA issued Proposed Assessment Nos.
000165855 and 000165874 for alleged violations occurring at Armstrong's Big Run and Midway
Mines, respectively. In its letter, Armstrong asserts that it failedto contest the proposed penalty
assessments because of a mistaken failure of communication between its Director of Safety and·
its Accounting Officer, who each believed that the other individual was sending in the contest
forms. Along with its letter, Armstrong furnished evidence that it had paid proposed assessments
that it did not intend to contest. The Secretary states that she does not oppose the reopening of
the proposed penalty ass~ssments.

31FMSHRC746

Having reviewed Armstrong's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 .C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Ro~oh~~eomk..ioner

31 FMSHRC 747

Distribution:
Donald W. Lamb, Safety Dir.
Armstrong Coal Co.
407 Brown Rd.
Madisonville, KY 42431

w. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd;, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MS~
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety& Health Review Commission
601 New JerseyAvenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 748

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
. 601 NEW JE~SEY AVE1'4UE, NW . . .
SUITE9500
WASHINGTON, DC 20001

July 9, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
APMINISTRATION (MSHA)

Docket No~ WEYA 2009-1
A.C. No. 46-09136-156167

v.

Docket No. WEYA 2009-358
A.C. No. 46-09136-159271

BIG RIVER MINING, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). In these now consolidated proceedings, the Commission
denied without prejudice inotions that had been filed by Big River Mining, LLC ("Big River") to
reopen pellalty assessments· that had. become final orders of the Commission pursuant to section
105(a) of the Mine Act, 3.0 U.S.C. § 815(a). Big River Mining, LLC, 31FMSHRC396 (Apr.
2009). On April 27, 2009, the Commission received a renewed and amended motion by counsel
for Big River seeking to reopen the assessments.
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the S~retary of Labor no later than 30 days after receiving the proposed
penalty assessment. ·Jf the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Big River's original motions included affidavits from its safety director, who assumed
that position in August 2008, stating that he had spoken with his predecessor about, and searched
the office files for, any proposed penalty assessments from the Department of Labor's Mine
Safety and Health Administration ("MSHA"). Nevertheless, he states that he did not learn of the
two assessments involved here, which had been issued in the preceding weeks, until he later saw
that they were delinquentaccording to MSHA's public database.
The Commission denied the original requests to reopen because of Big River's failure to
specify the individual proposed penalties in each of the assessments it intended to contest upon
31FMSHRC749

. . .

.

.

.

..

.

.

reopening. 31 FMSHRC at 397-98. Big River's renewed motion now includes copies of each
assessment marked to indicate which penalties and related citations and orders Big River would
contest if the assessments are reopened, as well as a statement that those penalties that it does not
intend to contest have been paid.
·
Having reviewed Big River's motions and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 750

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann; Esq.
Office of the Solicitor, U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 751

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

July 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-1036
A.C. No. 46-09241-174421

v.
STACY LYNN COAL, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On March 26, 2009, the Commission received from Stacy
Lynn Coal, LLC ("Stacy Lynn") a motion by counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). The motion was not supported by an affidavit or any other factual material,
such as a copy of the proposed assessment. Counsel for the operator states that he had been
unable to procure the proposed assessment from Stacy Lynn.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
31 FMSHRC 752

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Orifariuary 13, 2009, MSHA issued proposed assessment No. 000174421 to Stacy Lynn.·
According to MSHA's records, this proposed assessment was delivered to the operator on·
January 31, 2009. Stacy Lynn states in its motion that it had not previously contested citation
or order and "simply did not get the procedures correct." Stacy Lynn adds that it had recently
retained counsel but had not yet properly established proper communication procedures with
counsel. The record fr:om the Secretary indicates that Stacy Lynn has an excessive balance of
delinquencies dating back to July of 2008.

a

The Secretary states that she· does not oppose the reopening of the proposed penalty
assessment..
Having reviewed Stacy Lynn's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether. good cau8e exists for Stacy Lynn's failure to timely contest the penalty proposal and
whether relief from the final ol'der should be granted. If it is detennined that such reliefis
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

·-\

31FMSHRC753

On remand, the Chief Administrative should determine what Stacy Lynn actually did to
attempt to contest the proposed assessment in this case (i.e., how it "simply did not g~tthe
procedures correct"), particularly in view of its record of unpaid assessments ptj9r to the
proposed assessment in this case.

Mich

Robert F. Cohen, Jr., Commissioner

31FMSHRC754

Distribution:
Casey A. Sears, Il, Esq.
128 East Market St.
Johnson City, TN 37604
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA ·22209•2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC755

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

July 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-966
A.C. No. 46-09042-174823

v.
COAL RIVER MINING, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On March 12, 2009, the Commission received from Coal
River Mining, LLC ("Coal River") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 756

Coal Rivet states that it had timely contested the citation underlying the penalty at issue
but subsequently paid the penalty by mistake. The Secretary states that she does not oppose the
reopening of the proposed penalty assessment.
Having reviewed Coal River's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F;R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 757

Distribution:
F. Thomas Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown,.WV 26501
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
W. Christian SchU.mann, Esq.
Office of the Solicitor.
U.S. Department of Labor
1100 Wilson Blvd., Rooll1 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert. J~ Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 758 ·

FEDERAL MINE ,SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
• SUITE9500
WASHINGTON; DC 20001

July 14, 2009
SECRETARY OF LA80R,
MINE SAFETY AND IffiALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2009-388-M
A.C. No. 20-00552-175661

v.
DETROIT SALT COMPANY, LLC

BEFORE: ·Duffy; Chairman; Jordan, Young,.and Cohen, Commissioners
ORDER
BY THE COMMISSION:

This matter arises tinder the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006}("Mine Act"). On March 26, 2009, the Commission received from Detroit
Salt Company, LLC ("Detroit Salt") a letter requesting to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b} (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 759

Detroit Salt states that it intended to contest two penalties and to pay the n::maining
penalties. It further states that its Account~ Payable Department
. paid the proposed penalties as
intended but failed to mail the assessment form contesting two of the penalties. The Secretary
states that she does not oppose the reopening of the proposed penalty assessment.
.

.

,

Having reviewed Detroit Salt's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge.ror
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shail fik a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. ·
·'
.

·~Co~
. e~
Robert F. Cohen, Jr., Commissioner

31FMSHRC760

Distribution:
Pete Graham, Director of Mining
Detroit Salt Co.
12841 Sanders St.
Detroit. MI 4821 7
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 ·
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC761

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW ·
SUITE 9500
WASHINGTON, DC 20001

July 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-293-M
A.C. No. 22-00035-167206

v.
OIL-DRI PRODUCTION COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 13, 2009, the Commission received a requestto
reopen a penalty assessment issued to Oil-Dri Production Company ("Oil-Dri") that had become
a fmal order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 29, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000167206 to Oil-Dri, proposing penalties for 12
citations that had been issued to Oil-Dri in July and August 2008. After receiving no response,
MSHA sent Oil-Dri a delinquency notification on or around January 26, 2009, for the
assessment. Oil-Dri states that it intended to contest six of the penalties and pay the other six
penalties, but never received the assessment. In its request to reopen the case, Oil-Dri also
expressly denies having received the assessment even though MSHA had notified it that the
assessment was signed for by a particular Oil-Dri employee.

The Secretary states in her response that she does not oppose the reopening of the
assessment, but also states that her records indicate that a specific Oil-Dri employee did sign for
the assessment on November 3, 2008.
31 FMSHRC 762

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

In a case like this, in which the operator is seeking to contest only some of the penalties
contained in an assessment, it is incumbent upon the operator to include in its request to the
Commission to reopen not only the basis for reopening, but also the specific penalties it wishes
to reopen. Because Oil-Dri has not done so in this ca.Se, we deny its request to reopen withorit
prejudice. 1 Should Oil-Dri file a new or renewed request to reopen, it should specifically indicate
which penalties it wishes to contest upon reopening and that it has paid the other penalties.
Moreover, Oil-Dri should include an affidavit from the particular employee who MSHA alleges
signed for the assessment regarding his knowledge of events with respect to the assessment.

Michael

Robert F. Cohen, Jr., Commissioner
1

The words ''without prejudice" mean that Oil-Dri may submit another request to reopen
the case so that it can contest the specific citations and penalty assessments.
31FMSHRC763

Distribution:
Lany S. Evans,. Safety Mngr.
Oil-Dri Production Company
P.O.Box380
Ochlocknee, GA 31773
W. Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209'"2296
Myra Jam.es, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC764

FEDERAL MINE SAFET'( AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW·.·
SUITE9500
WASHINGTON, DC 20001

July 17, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

Docket No. KENT 2009-9
A.C. No. 15-18267-157148

V.

MANALAPAN MINJNG COMPANY·

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER·
BY THE COMMIS.SION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.s.c.
§ 801 et seq. (2006) ("Mine Act"). On May 13, 2009, the Commission received from
Manalapan Mining Company ("Manalapan") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). The Commission had denied without prejudice a previous request by
Manalapan regarding the same assessment. See Manalapan Mining Co., 31 FMSHRC 392
(Apr. 2009).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 16, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty Assessment No. 000157148 to Manalapan. In its original
request to reopen, Manalapan asserted that it would be a great hardship for it to pay the total
balance of outstanding penalty assessments shown on that assessment. The Commission denied
the request to reopen because Manalapan had failed to explain why it had not contested
Assessment No. 000157148 on a timely basis, and because its request was not based on any of
the grounds for relief set forth in Rule 60(b). 31 FMSHRC at 394.

31 FMSHRC 765

Manalapan's second request to reopen states that the original request was submitted by a
former secretary for the company who had lost the assessment, and had prepared and filed the
original request without the operator knowing she had lost the assessment. Manalapan asserts
that it did not know about the assessment until it received the Commission's order denying the
request on or about April 21, 2009.
In response, the Secretary points out that the original request to reopen includes, in
addition to the signature ofManalapan's secretary, the signature of its safety director, and that his
signature appears to match the signature of that official on the operator's second request to
reopen. The Secretary also argues that the safety director was served with the Commission's
docketing statement for the original request, dated October 9, 2008.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could beentitledtq relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and itsJudges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing ofgood cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted.. See Coal Prep. Servs.; Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 766

While Manalapan's second request to reopen includes an explanation for its failure to
timely file a contest in response to the assessment - the contest form had been lost by the
secretary - the second request otherwise fails to comply with the plain instructions the ·
Commission included in its order regarding any renewed or amended request to reopen the
assessment here. See 31 FMSHRC at 394 n.8. Moreover, the Secretary's response raises
important credibility issues regarding Manalapan' s filings in this proceeding. Accordingly, we
again deny Manalapan's request to reopen, but this time with prejudice.

~~······
. .

.

.

. .

~
Michae~~

. • . . .

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 767

Distribution:
Jim Brummett, Safety Dir~
Manalapan Mining Company, Inc.
8174 East Hwy. 72
Pathfork, KY 40863
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1-100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC768

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEYAVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July 17, 2009

SECRETARY OF LABOR; .
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2009,..561-M
A.C. No. 35-03702-167823

v.

Docket No. WEST 2009-562-M
A.C. No. 35-03702-170734

ROCK N ROAD QUARRY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMlSSION:
This matter arises under the Federal Mirie Safety and Health Act ofl977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February25, 2009, the Commission received a request to
reopen two penalty assessments issued to Rock N Road Quarry (''Rock N Road"), one or both of
which may have beeome final orders of the Commissfon pursuant to section 105{a) of the Mine
Act, 30 U.S.C. § 815(a).1
Under section 1OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the propo8ed
penalty assessment. If the operatorfails·to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a). ·
According to Rock N Road's request, the first Proposed Assessment at issue, No.
000167823, dated November 4, 2008~ was not received because there was no one at its address to
sign for it when it was delivered by Federal Express. Rock N Road· asked for it to be resent, but
never received it until the Department of Labor's Mine Safety and Health Administration
(''MSHA') faxed it to the operator on February 24, 2009. Rock N Road's request includes a

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2009-561-M and WEVA 2009-562-M, both captioned Rock
N Road Quarry and involving similar procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 769

form

copy of the contest
indicating that it wishes to contest all 16 proposed penalties. The
Secretary of Labor states that she does not object to reopening the assessments. Her response
does not address the operator's allegation that MSHA failed to provide it a copy of Assessment
No. 000167823 for over three months.
The operator also wishes to contest Assessment No. 000170304, issued on
December 9, 2008, which proposes a single penalty for a previously issued order. The Secretary
states that Assessment No. 000170734 was delivered to Rock N Road on December 18, 2008,.
and that the operator's contest was not mailed until January 21, 20Q9, which was four days late.
The operator indicates that. it was confused when, after contacting MSHA .about not receiving
Assessment No. 000167823 and waiting for a copy of this assessment, it then received another,
different assessment. ··
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Prqcedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept 1995).
Having reviewed Rock N Road's request and the Secretary's response, we conclude that
Assessment No. 000167823 has not become a final order of the Commission. The operator first
received the assessment by fax on February 24, 2009, and one day later filed its request to
·
reopen. In its request it specified the individual penalties that it wi,shes to contest, and thus the
motion may serve as the operatc;>r's timely notice of contest... .See Double Bonus Coal Co.,. 31
FMSHRC 358, 360 (Mar. 2009) (holding that statements irJ. motions to reopen could serve as
operator's notice of contest, and denying the motions as moot). Consequently, because the
assessment never became a final order, reopening is not necessary. Accordingly, we deny the
operator's request as to that assessment as moot and remand this matter to the Chief
Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.
In the interest of the efficient administration of justice, we also reopen Assessment
No. 000170734 and remand it to the Chief Achlrinistrative Law Judge for further proceedings.
The operator's justifiable confusion constitutes inadvertence for contesting this assessment four
days late.

31 FMSHRC 770

Consequently, and consistent with Rule 28, the Secretary shall file petitions for
assessment of penalty in both of these dockets within 45 days of the date of this order. See 29
C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 771

Distribution:
Lee Bissel
Rock'n Road Quarry
7238 No. Adams
Culver, OR 97734
W. Christian Schumann~ Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance,· MSHA
U.S. Dept. of Labor .
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D;C. 20001-2021

31 FMSHRC 772

FEDERAL MINE.SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JE~SEYAVEl\IU~. NW
:SUITE 950!)
WASHINGTON, DC 20001

July 20, 2009
SECREJARY OF LABOR,

MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

.·'·:

Docket No. KENT 2009-573
A.C. No. 1~-18987-147298
Docket No. KENT 2009-574
A.C. No. 15-18987-154004

v.

Docket No. KENT 2009-575
A.C. No. 15-18987-160184

C.S.A. MINING INCORPORATED

'

..

Docket No. KENT 2009-576
A.C. No. 15-18987-162936

BEFORE: Duffy, Chairman; Jordan, Young,; andCohen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ('~Mine Act"). On January 2, 2009, the Commission received a request to
reopen four penalty assessments issued to C.S.A. Mining Incorporated ("CSA") that had become
final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 16, 2008, June 18, 2008, August 13, 2008, and September 17, 2008, the
Department of Labor's Mine Safety and Health Administration ("MSHA'') issued Proposed
Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively, to CSA,
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2009-573, KENT 2009-574, KENT 2009-575 and l(ENT
2009-576, all captioned C.S.A. Mining Incorporated, and involving the same factual and
procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 773

.
.
.
alleging multiple violations and proposing civil penalties fothe suin of$163,381~· The president
of CSA contends that the issuance of the citations andorders caused him financial and personal
stress and that, consequently, CSA was unable to timely contest the proposed penalties.
.

.

The Secretary opposes reopening on the ground that CSA's explanation for failing to
timely file notices of contests in the four cases does not constitute the "exceptional
circumstances" necessary to support reopening. The Secretary further states that reopening is
unjustified here because CSA failed to identify facts which, if proven, would establish a .
meritorious defense. In addition, the Secretary contends that the operator fails to explain why:, ·
after it was informed that it had not contested the penalty assessments, it took as long as it did to
request reopening. The Secretary explains that although MSHA sent CSA delinquency notices
on July 10, 2008, September 11, 2008, November 6, 2008, and December 10, 2008, that
Proposed Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively,.
had become delinquent, the operator did not request reopening until January 2, 2009- between
one and six months after MSHA sent the letters.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section l05(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall he guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs,, lnc.,17 FMSHRC·1529, 1530 (Sept. 1995).

31 FMSHRC 774

Having reviewed CSA's request to reopen and the Secretary's response thereto, we agree
that CSA has failed to provide an adequate basis for the Commission to reopen the four penalty
assessments. CSA's request for relief does not explain the company's failure to contest the
proposed assessment on a timely basis, and is not based on any of the grounds for relief set forth
in Rule 60(b). Furthermore, CSA has failed to explain the delay in responding to the delinquency
notices. Accordingly, we hereby deny without prejudice CSA's request. FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words
"without prejudice" mean that CSA may submit another request to reopen the assessments so that
it can contest the citations and penalty assessments. 2

.....

Michae

Robert F. Cohen, Jr., Commissioner

2

If CSA submits another request to reopen, it must identify the specific citations, orders,
and associated proposed penalties it seeks to contest. CSA must also establish good cause for not
contesting the citations, orders, and associated proposed penalties within 30 days from the date it
received the four proposed assessments from MSHA. Under Rule 60(b) of the Federal Rules of
Civil Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, smprise, or excusable neglect on the part of the party seeking
relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the
adverse party. CSA should include a full description of the facts supporting its claim of"good
cause," including how the mistake or other problem prevented CSA from responding within the
time limits provided in the Mine Act, as part of its request to reopen. CSA should also submit
copies of supporting documents with its request to reopen.

31 FMSHRC 775

Distribution:
Alga Jent, President
CSA Mining, Inc.
P.O. Box 126
Kite, KY 41828
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlin~on, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N~ W., Suite 9500
Washington, D.C· 20001-2021

31 FMSHRC 776

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW

SUITE9500
WASHINGTON, DC 20001

July 20, 2009
SECRETARYOFLABOR, ·
MINE SAFETY AND HEALTH
ADMINISTRATION(MSHA)
Docket No. WEVA 2009-1035.;M
A.C. 46-07938-l 60952-F523

v.
PETROLEUM FUELING, INC.

BEFORE: Duffy, Chairman~ Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This m~tter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 14, 2009, the Commission received from
Petroleum Fueling, Inc. ("Petroleum") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) ofthe Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Laborno later than 30 days after receiving the proposed
penalty assessment. If the operator fails to riotify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in.appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Se111s., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 777

Counsel for Petroleum states that he confused the asse~sti:J.~nt antf citations that Petroleum
intended to contest with the assessment and citations that arose out of a similar incident
involving a truck accident, and that he inadvertently submitted a notice of contest to MSHA on
the incorrect assessment and citations. The Secretary states that she does not oppose the
reopening of the proposed penalty assessment.
Having reviewed Petroleum's request and the Secretary's response, in the interests of.
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 778

Distribution:
David J. Mencer, Esq.
Bailey & Wyant, PLLC
500 Virginia Street East, Suite 600
P.O. Box 3710
Charleston, WV 25337-3710
W. Christian Schumann; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th FIOor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 779

FEDERAL MINE SAFETY AND HEAi-TH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW .
SUITE9500
WASHINGTON, DC 20001

July 20, 2009

Docket No. KENT 2008-1111
A.C. No. 15-12564-125861

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

Docket No. KENT 2008-1181
A.C. No. 15-12564-127886

v.
LEFT FORK MINING COMPANY, INC.

Docket No. KENT 2008-1182
A.C. No. 15-12564-130206

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 28, and June 20, 2008, the Commission received
from Left Fork Mining Company, fuc. ("Left Fork") a letter and motions seeking to reopen three
penalty assessments that had become final orders of the Commission pursuant to section l 05(a)
of the Mine Act, 30 U.S.C. § 815(a). On January 9, 2009, the Commission denied the motions.
Left Fork Mining Co., 30 FMSHRC 8, 11 (Jan. 2009). On January 22, 2009, Left Fork filed a
petition to reconsider the denial of its motions.
In August and October 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Penalty Assessment Nos. 000125861, 000127886,
and 000130206 to Left Fork, which listed proposed penalties for several citations. Left Fork
failed to timely contest various penalties associated with those proposed penalty assessments as
required by section 105(a) of the Mine Act. As a result, the proposed penalties were deemed
final orders of the Commission. 1

1

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
31 FMSHRC 780

In November and December 2007, and January 2008, MSHA issued a Notice of
Delinquency to Left Fork pertaining to.each of.:the proposed penalty assessments. On May 13,
2008, counsel for MSHA sent Left Fork a letter pertaining to the delinquencies of all three
proposed assessments, stating that the total unpaid delinquencies amounted to $76,897.79,
including statutory interest and administrative fees. MSHA further stated that unless payment
was made by May 27, 2008,it wouldissu,e a citation under section 104(a) of the Mine Act
charging Left Fork with a failure to comply with the Commission's final orders with the Mine
Act. MSHA also stated that ifLeft Fork shouldfail to abate the section 104(a) citatio~ it would
necessitate the issuance ofa mine closure order.
On May 28 and June 20, 2008, the Commission received Left Fork's requests to reopen .
the penalty assessments that had become final Commission orders. In its requests to reope~ Left
Fork's counsel had stated that, upon receipt oftbe subject proposed assessments, the assessment
forms were marked to indicate Left Fork's intent to contest the penalties associated with several.
citations, and then forwarded to Left For\c,'sBrookside office, consistent with company policy..
Counsel further stated that "[t]hrough. inadvertence or mistake," the completed assessment forms
were not :timely returned to MSHA. Counsel attached to the pleadings affidavits by Tony
Nelson, Jr., Left Fork's safety director, in which the safety director states in part. that "[b]ecause
of a misunderstanding, personnel formerly employed in the Brookside office paid the uncontested
penalties but apparently did not return the assessrnent cards to MSHA as contested."
On July 2, 2008, the Commission rece\ved responses to Left Fork's pleadings~ from the
Secretary. The Secretary opposed the requests on the basis that the operator's conclusory
assertion was insufficient to establish exceptional circumstances that warrant reopening. She
further stated that the operator failed to expiainwhy, after it was sent the Notices of Delinquency
in each of the three cases many months earlier, it took as long as it did to request the reopenings.
In this regard, the Secretary noted the letter sent by her counsel on May 13, 2008. The Secretary
maintained that the operator's .filing of requests to reopen only when facing enforcement action
did not demonstrate good fai$.
On July 22, 2008, the Commission received a reply to the Secretary's responses from Left
Fork. Left Fork asserted that it did, in fact, explain how o:rwhy a mistake occurred at the
Brookside office. It stated tJ:iat the explanation was set forth in the safety director's affidavit
when he stated that he intended to contest the penalties but that "[f]or reasons unknown" the
proposed assessment was not returned to MSHA. In addition, Left Fork contended that a
delinquency notice is not proof of default. It explained that MSHA's May 13 letter listed two
assessments (Nos. 000120903 and 000134705) which were not delinquent. It also stated that
after it paid the subject proposed assessments,.it received delinquency notices demanding
payment.

is deemed a final order of the Commission. 30 U.S.C. § 815(a).

31 FMSHRC .781

On January 9, 2009, the Commission issued its denial of Left Fork's requests, concluding
that Left Fork failed to make a showing of circunistances that warrant reopening. 3 l FMSHRC
at 11. The Commission explained that Left Fork's statements that its failure to timely file its
contest of the proposed penalty assessments due to '~inadvertence or mistake" did not provide the
Commission with an adequate basis to justify reopening. Id; at 10. It noted that even after the
Secretary opposed Left Fork's motion on the gtolinds that it had set forth only a conclusory
assertion in its attempt to justify relief, the operator merely responded that "[f]or reasons
unknown, the proposed assessments were not returned as contested." Id. In addition, the
Commission stated that Left Fork failed to explain its failure to act after receiving MSHA's
delinquency notices. Id. It noted that Left Fork did not seek relief until it faced enforcement
action, including potential mine closure. · Id. at· 10-11.

In its petition for reconsideration, Left Fork offers to further explain the circumstances
related to its failure to contest the proposed penalty assessments and its delay in seeking relief.
The operator states that its safety director had requested that a clerical employee return the
assessments as contested, but that "apparently'' this did not happen. Left Fork states that ''the
precise reasons are not known, but it was apparently an oversight." It notes that the clerical
employee also believed that the penalties had been contested, as evident in her letter to MSHA
dated January 18, 2008, indicating that the assessments had been contested. In addition, Left
Fork explains that it did not seek reliefafter receiving the delinquency notices because it has
previously received incorrect delinquency notices from MSHA, and that delinquency notices do
not necessarily mean that payments have not been made or that matters have not been properly
contested. It also refers to MSHA's May 13 letter which it states ''cites several penalties which
were not delinquent." Left Fork asserts that it was only when it received a notice threatening to·
shut down Left Fork's mine did it become apparent that the assessments had n:ot been properly·
contested. Left Fork attached additional evidence to its petition.

The Secretary opposes Left Fork's petition for reconsideration. She argues that Left Fork
has advanced no reasons justifying reconsideration. The Secretary submits that a petition for
reconsideration may not be used to relitigate old matters, raise arguments, or present evidence
that could have been raised prior to the entry ofjudgment. She contends that Left Fork identifies
no material factual ot legal issue that could not have been fully considered by the Commission at
the time Left Fork filed its motions to reopen.· Accordingly, the Secretary requests that the
Commission de:riy Left Fork's petition for reconsideration.
The Commission has recognized that petitions for reconsideration under Commission
Procedural Rule 78 ''ought, at the very least, to bring to the Commission's attention facts or legal
arguments the petitioner believes·were overlooked or misapprehended, or point to a change in
controlling law." Island Creek Coal Co., 23 FMSHRC 138, 139 (Feb. 2001) (citations omitted).
The Commission stated that such petitions "should also not merely raise arguments the
Commission has already considered, or attempt to raise new legal arguments." Id. (citations
omitted). Courts have recognized that the basis for a motion for reconsideration must not have
been available at the time the first motion was filed. Servants ofthe Paraclete v. Does, 204 F.3d
31FMSHRC782

1005, 1012 (10th Cir. 2000). In other words, a motion for reconsideration must fail when the
motion merely advances "new arguments, or supporting facts which were available at the time of
the original motion." Id.
Here, Left Fork has failed to set forth reasons justifying reconsideration. In argufug tb~t it
has previously received incorrect delinquency notices and that delinquency notices do not
··
necessarily mean that proposed penalties have not been contested, Left Fork essentially raises an
argument that the Commission considered in disposing of Left Fork's motions to reopen.2 In
addition, although Left Fork presents more detailed information concerning its failure to timely
contest the proposed penalty assessments and its delay in filing the motions. to reopen, there is no
indication that such evidence was not also available at the time that Left Fork filedits motions to
reopen.
Accordingly, for these reasons, Left Fork's petition for reconsideration is denied.

Robert F. Cohen, Jr., Commissioner

2

We note that Proposed Assessment Nos. 000120903 is referred to as paid in a "Civil
Penalty Collection Report" attached to MSHA's May 13 letter.
31 FMSHRC 783

Distribution:
Terry Nelson Jr., Safety Director
LeflFork Mitring Company, fuc.
P.O. Box 405 .
Arjay, KY 40902

w .. Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 784

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW.
SUITE950.0
WASHINGTON, DC 20001

July 20, 2009
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2009-764
A.C. No. 46-08808-166004

v.
SPARTAN MINING COMPANY, INC.
BEFORE: Duffy, Chairman;· Jordan, Young, and Cohen, Cominissioners
·ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 8, 2009, the Commission received from Spartan

Mining Company, Inc. ("Spartan") an amended motion by counsel seeking to reopen a penalty
assessment that may have become a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S;C. § 815(a).
.
Under section 105(a) of the Mine Act, an operatorwhowishesto contestaproposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty a8sessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 15, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued an assessment to Spartan proposing $208,985 in penalties fo:r 163 citations and
orders previously issued at Spartan's Ruby Energy Mine. fu its·initial request to reopen filed on
January 29, 2009, Spartan alleged that it did not receive the Federal Express envelope containing
the proposed assessment and requested that the assessment be reopened as to the ciiation8 and
orders marked on the copy of the proposed assessment it attached to the motion. However, none
of the citation$ or orders was marked on the attached copy. Consequently, the Commission·
denied Spartan's request without prejudice~ and specified information that Spartan should include
to further clarify matters in the event it decided to refile its motion. See Sparlan Mining Co., 31
FMSHRC _ , __, slip op. at 2-3 (May 20, 2009).
·

31,FMSHRC 785

Spartan filed an amended motion on June 8, 2009, which mcludes an assessment form
marked to show that Spartan would contest 73 proposed penalties upon reopening of the
assessment. The amended motion also includes a copy of the Federal Express Tracking Report
for the delivery package containing the assessment that MSHA provided to Spartan. The report
shows that the delivery company twice tried to deliver the package, both times unsuccessfully.
Spartan explains that it is understandable that the first attempt was unsuccessful, because it was
made after business hours, but cannot understand why the second attempt also failed, gjven that it
occurred at a time that its office was fully staffed. Spartan states that because of problems with
deliveries it has changed its mailing address to a more centralized delivery location.
The Secretary did not oppose Spartan's original request for reopening, and did not
respond to its amended motion. 1
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good. cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs.,/nc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Spartan's amended motion, we conclude that the proposed assessment
at issue has not become a final order of the Commission. We deny the motion as moot and
remand this matter to the Chief Administrative Law Judge for further proceedings as appropriate,
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Spartan's submission of its completed contest form with its amended motion to reopen serves as
its notice of contest. Consequently, and consistent with Rule 28, the Secretary shall file petitions
1

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA
- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated
September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter
in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or
inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a
reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of
a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a
reasonable time. Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has no bearing on our
determination on the merits of the operator's proffered excuse.
31 FMSHRC 786

for assessment of penalty within 45 days of the date of this order. See 29 C.F.R § 2700.28. See
Double Bonus Coal Coo,, 31FMSHRC358, 360 (Mar. 2009).

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 787 .

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Moq~antown, WV. 26501
:· .-·
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal
Safety & He3.Ith Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

Mine

31 FMSHRC 788

FEDERAL MINE SAFETY ~D HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW.
SUITE.9500
WASHINGTON, DC 20001

July 20, 2009

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

v.

.. •

Docket No. CENT 2009· 1
A;C. No. 39-01381-152957

MORRIS, INC;
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
'ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 1, 2008, and June 12, 2009, the Commission
received from Morris, Inc. ("Morris") requests to reopen a penalty assessment that became a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 1, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Assessment No. 000152957 to Morris, proposing penalties for two citations
that MSHA had previously issued to Morris. According to the Secretary, any contest of those
penalties was due on July 17, 2008. However, the Secretary's records show that Morris did not
file a contest until July 25, 2008, when it contested one of the two proposed penalties. Because
Morris' original request to reopen did not explain the reason for the late filing, the Commission
denied the request without prejudice. See 31 FMSHRC _ , _ , slip op. at 2-3 (May 6, 2009).

Morris filed a second request to reopen on June 12, 2009. It explains that on July 2,
2008, well within the 30-day time limit, internal communications indicated that one of the
penalties should be paid and the other contested. When it learned on July 17, 2008, that the
31 FMSHRC 789

instructions had not been carried out, Morris then siibmitted the check and contest form. Morris
includes copies of the assessment showing the internal communications. Morris further states
that it has established a new process to ensure that all future notices of contest are submitted in a
timely manner.
The Secretary did not oppose Morris' original request for reopening, and did not respond
to its second request.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res.,1nc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 790

Having reviewed Morris' requests and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC791

Distribution:
Jean Morris
Human Resources Director, Inc.
Morris, Inc.
P.O. Box 1162
Pierre, SD 57501
W. Christian Schumann, Esq.
Office of the Solicitor · ·
U.S. Departnient of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Ciyil _penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25t1t Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC792

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
'

•

•

•

•

,•

'

•

·,.

I

I

•

,•

•

•

'•

601 NEW JERSEY AVENUE,'NW
. SUIT.E 9500
WASHINGTON, DC 20001 ·

July 20, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No~ YORK2009-83-M
·A.C. No. 30-00070..:140110

v.
LEHIGH NORTHEAST CEMENT
COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the.Federal Mine Safety andHealthAct of 1977, 30 U.S~C.
§ 801 et seq. (2006) ("Mine Act''). On February 6, 2009, theCommissio:n received a motion by
counsel ·to reopen a penalty assessment issued to Lehigh Northeast Cement Company (''Lehigh
Northeast") that had become a final order of the Commission pursuant to sectfon 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Lehigh Northeast states that in December 2007 the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued it 28 citations, all of which were designated as
involving high negligence. Lehigh Northeast explains that it requested and was granted a
conference with MSHA on the citations. Lehigh Northeast states that it was eventually told by
MSHA that the changes it requested would be made, and that it learned that a neighboring
operator had been successful as well in reducing negligence findings on similar citations it had
been issued.
·
·

31 FMSHRC 793

However, MSHA subsequently issued Assess~ent"No. 0001401 IO to Lehigh Northeast,
proposing penalties for the 28 citations based on the: high negligence allegations. Lehigh
Northeast states it was under the impression that revised proposed penalties would issue, based
on the reduction in negligence, but that turned out not to be the case. Lehigh Northeast, now
represented by new counsel, subsequently learned that the MSHA database showed the continued
delinquency of the assessment and directed that the motion for reopening be filed. After initially
opposing Lehigh Northeast's request to reopen, the Secretary subsequently filed a response
stating that she does not oppose reopening here.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Jnc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Lehigh Northeast's request and the Secretary's response, we conclude
that, on balance, this case merits reopening. Lehigh Northeast clearly showed an intent to contest
proposed penalties predicated on alleg~tions of high negligence, and was apparently told by
MSHA that the citations would be changed to show a lesser degree ofn~gligence. Given that, it.
is understandable why Lehigh Northeast.believed that it was unnecessary to contest the initial
proposed assessment.'

1

We grant reopening even though Lehigh Northeast did not move to reopen the
assessment until over ten months had passed since the assessment.had become a final order. . .
Operators should be aware that, in general, a delay of such length decreases the. likelihood that
the Commission will look favorably upon a request to reopen. In this case we are willing to grant
reopening because it appears that MSHA has concluded that the original citations were incorrect
as to the degree of negligence, which would necessarily reduce the amount of the penalties.
31 FMSHRC 794

fu the interests of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the · ·
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 795

Distribution:
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumatin, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd,, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. OfLabor'
1100 Wilson Blvd:, 25th Floor
Arlington, VA 22209~3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 796

FEDERAL MINE SAfETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENU~, NW
· .SUITE950Q
WASHINGTON, DC 20001

July 21, 2009
SECRETARY OF LABOR, ·
MINE SAFETY AND HEALTH :
ADMINISTRATION(MSHA).

v.

Docket No. CENT 2008"-786-M
A.C. No. 14-00034•159579

ASH GROVE CEMENT COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On September 22, 2008, the Commission received from Ash
Grove Cement Company ("Ash Grove") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under sectiOh 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 7, 2008, the Department of Labor's Mine Safety and Health Administration

("MSHA") issued Proposed AssessmentNo. 000159579 to Ash Grove, proposing civil penalties
for nine citations. Ash Grove states that, on August 26, the company's safety manager contacted
its counsel and indiCated that he would forward the proposed assessment to counsel's office to
process the hearing _request. On August 27, counsel received the proposed assessment by email.
Counsel failed to contest the proposed assessment due to work commitments and related travel,
which is described with specificity in an attached affidavit.
The Secretary states that she does not oppose the request to reopen the proposed
assessment. However, she urges the operator to take all steps necessary to ensure that, in the
future, any penalty assessments are contested in a timely manner.

31 FMSHRC 797

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to tiniely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Ash Grove's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's.Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28 .

.Robert F. Cohen, Jr., Commissioner

31 FMSHRC 798

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann;Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220 ·
Arlington, VA· · 22209-2296 ·
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C; 20001-2021

31 FMSHRC 799

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW.
SUITE9500
WASHINGTON, DC 20001

July 24, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2009-408-M
A.C. No. 36"'.07747-172956

v.
QUALITY AGGREGATES, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 30, 2009, the Commission received from Quzjity
Aggregates, Inc. ("Quality") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 800

Quality states that,.following its receipt of the proposed assessment on or about January
12, 2009, its safety director, who was responsible for reviewing the document, was out of the
office on vacation
a week. Following his refurn, the safety director was generallyaway from
Quality's' home office on trammg and other work duties during the next eight days .. Quality
fw:ther states that on February 3, 2009, it received a letter from MSHAdated January 23, 2009
which vacated two citations that were included in the proposed assessment. Quality asserts that
its safety director mistakenly believed that he would receive another assessment that would
reflect the vacated citations.

for

The Secretary opposes reopening the proposed penalty assessment, maintaining that
Quality has failed to establish the existence of "exceptional circumstances." Specifically, the
Secretary contend§ that for the period up to February 3, 2009, Quality's "inadequate or unreliable
internal procedures'' do not justify reopening. The Secretary is silent as to the period beginning
February 3, 2~09.
We find that the reasons advanced by Quality for not contesting the proposed assessment
between January 12 and February 3, 2009 are essentially irrelevant. As of February 3, 2009,
when the safety.director had focused on the proposed assessment, Quality still had 11 days within
which to contest it. Thus, the issue is whether the safety director's mistaken belief that he would
receive another proposed assessment, reflecting the amended citations, was reasonable. In this
regard, we note that in the letter dated January 23, 2009, MSHA clearly indicated the total
amount of the assessment, both before and after the two citations were vacated.
· ..;

31 FMSHRC 801

. Having reviewed Quality's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge· for a d'etennination of
whether good cause exists for Quality's failure to timely contest the penalty and whether relief
from the fillal order should be granted. 1 If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
.
Rules, 29. C.F.R.§ 2700. .

Robert F. Cohen, Jr., Commissioner

1

On remand, the judge should consider whether Quality has met the standard for relief
under Rule 60(b) because of its mistaken belief that it was going to receive a revised assessment
after two citations on the assessment were vacated.
31 FMSHRC 802

Distribution:
Stephen L. Korbel, Esq.
Babst, Calland, Clements, Zomnir
Two Gateway Center, 8th Floor
Pittsburgh, PA 15222
W. Christian Schumann; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Rooin 2220
Arlington, VA 22209-2296
MyraJames, Chief,
Office of Civil Penalty Compliance, MSHA
U.S. Dept. ofLabor
1100 Wilson Blvd., z5t11 Floor
Arlington, VA 22209-3939Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 803

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July 24, 2009
Docket No. VA 2009-46
A.C. No. 44-03088-151516 GTY

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

Docket No. VA 2009-47
A.C. No; 44.,.07087-144483 GTY
Docket No. VA 2009-48
A.C. No. 44-07069:-148351 GTY

v.

Docket No. VA 2009-49
A.C. No. 44-07069-144482.GTY
BRESEE TRUCKING CO., INC.
Docket No. KENT 2009-190
A.C. No. 15-J 7165-136968 GTY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 5, 2008, the Commission received from
Bresee Trucking Co., fuc. ("Bresee") motions by counsel seeking to reopen :five penalty
assessments that had become :final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers VA 2009-46, VA 2009-47, VA 2009-48, VA 2009-49, and KENT
2009-190, all captioned Bresee Trncking Co., Inc., and involving similar procedural issues.
29 C.F.R. § 2700.12.
31 FMSHRC 804

. We· have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become· final ·Commission orders under section. l05(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (Mayl993) ("JWR").··In evaluating requests.to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules. of Civil Procedure under which, for example, a party could be entitled tQ relief ·
from a final order of the Commission on the basis of inadvertence or mistake. See 29 CF.R.
§ 2700.l(b) ("the Commission and its Judgesshallbeguid~.so·far as.practicable by the Federal.
Rules of Civil Procedure")~JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
.
The record indicates :that delivery of the proposed penalty assessments was attempted at
several addresses but was not sutcess:ful. Upon learning that the proposed assessments were
delinquent, the operator filed. these requests to reopen. The Secretary states that she does not
oppose the reopening of the proposed penalty assessments but urges the operator to make sure
that it keeps MSHA informed of its current address of record.
It is an operator's responsibility to file with MSHA the address of a mine and any changes
of address. 30 C.F.R: §§41.10, 4 Lli; Operators may request service by delivery to another
·
appropriate address provided by the operator. 30 C.F.R. § 41.30.
It is unclear from the record whether MSHA mailed the proposed assessment to Bresee's
official address of record at the time of assessment and whether Bresee maintained its correct
address with MSHA. IfMSHA sent the proposed assessment to Bresee's official address of
record, grounds may exist for denying Bresee's request for relief Cf Harvey Trucking, 21
FMSHRC 567, 568-69 & n. l (June 1999) (stating that operator is required to notify MSHA of
changes of address). If, however, MSHA mailed the proposed assessment to an incorrect
address, the proposed assessment may not have become a final Commission order and Bresee's
request may be moot.

31 FMSHRC 805

Having reviewed Bresee' s motions, we remand this. matter to the ChiefAdministrative
Law Judge for a determination of whether the proposed assessnients became final orders and; if ·
so, whether the final orders should be reopened; We ask the Chief Judge, in considering the.
matter, to resolve the dispute over whetherMSHA sent the proposed assessment to Bresee's
official address of record at the time of assessment. The Judge shall order further appropriate
proceedings based upon that determination in accordance with principles described herein, the ·
Mine Act and the Commission?s Procedural Rules, 29 C.F.R. Part 2700.

M ~LuJO-rfJan,.Co~ssioner

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 806

Distribution:
Marco M. Rajkovich, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
.
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 ··
Washington, D.C. 20001~2021

31 FMSHRC 807

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July 31, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-~95-M
A.C. No. 26-02512-130423

v.
NEWMONT USA LIMITED

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On January 13, 2009, the Commission received a letter from
Newmont USA Limited ("Newmont") seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section I 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 31, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000130423 to Newmont, proposing civil penalties
for Citations Nos. 6394861 and 6342286. Newmont states that it paid the penalty for Citation
No. 6342286 on November 26, 2007, but that it mistakenly mailed its contest of Citation No.
6394861 along with that payment, rather than sending the contest to a separate MSHA address.
The operator states that on May 29, 2008, it received a Notice of Debt from the U.S. Department
of Treasury. Newmont explains that on June 2, 2008, it faxed documents demonstrating that it
had contested the citation to the counsel listed in the notice as handling the collection effort. On
June 4, 2008, Newmont received a letter from that counsel stating that the collection matter was
suspended until the dispute was reviewed. On November I 0, 2008, Newmont contacted MSHA
and was informed that the contest of the citation had not been received in a timely manner, and
that the penalty had been referred to Treasury for collection.
31 FMSHR.C 808 ,

The Secretary opposes Newmont's request to reopen Proposed Assessment No.
000130423. She asserts that the penalty assessment became a final Commission order on
December 7, 2007, and that the request to reopen was not received by the Commission until
January 13, 2009. The Secretary maintains that because the operator filed its request more than ·
one year after the assessment became a final order, the request should be denied. The Secretary
further notes that on January 23, 2008~ MSHA sent a delinquency notice to Newmont informing
the operator that it had failed .to timely contest the proposed penalty. The Secretary contends that
Newmont failed to explain why; after it was informed that it had not contested the proposed
penalty, it took so long to request reopening.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc.; 15 FMSHRC 782; 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section l05(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. 1 See 29 C.F .R. § 2700. l (b) ("the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also
held that a Rule 60(b) motion shall be..made within a reasonable time, and for reasons {l ), (2),
and (3) not more than one year atter the judgment, order, or proceeding was entered or taken. 2
Celite Corp., 18 FMSHRC 105, 106 (Apr. 2006) (citations and quotations omitted).
Here, we have been presented with Newmont's failure to timely contest Proposed
Assessment No. 000130423 due to its mistake in sending its contest to an incorrect address,
followed by a communicatiotibetween Newmont and counsel in charge of the collection action

1

Rule 60(b) provides that a court may relieve a party from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence ... ;
(3) fraud ... ;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief
Fed. R. Civ. P. 60(b).
2

Rule 60(c) provides that "[a] motion under Rule 60(b) must be made within a
reasonable time - and for reasons (1 ), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c).

31 FMSHR.c· 809 ·

where both apparently failed to realize that the only remedy available to Newmont was for the
Commission to reopen the order that had gone final, and then only for good cause and subject to
the time.limits set forth in Rule 60(c). This misunderstanding falls squarely within the ambit of
Rule 60(b)(l). See Ce/it~, 18 FMSHRC at 107.
Because Newmont waited over a year to request.relief with regard to Proposed
Assessment No. 000130423, its motion is untimely. JS Sand & Gravel, Inc., 26 FMSHRC 795,
796 (Oct. 2004). Accordingly, we denyNewmont's request to reopen.

Mich

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 810

Distribution:
Richard Tucker
Compliance & Safety
Newmont Mining Corporation
P.O. Box 669
Carlin, NV 89822-0669
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance,·MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500'
Washiligton, D.C. 20001-2021

31 FMSHRC 811

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW .
SUITE 9500
WASHINGTON, DC 20001

July 31, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009'."550-M
A.C. No. 01-00003-175599A

MICHAEL WILL, employed by
CHEMICAL LIME CO. OF ALABAMA

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Co~ssioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1.977, 30.U.S.C ....
§ 801 et seq. (2006) ("Mine Act"). On May 14, 2009, the Commission received :fre>m Michael
Will, employed by Chemical Lime Company of Alabama ("Will"), a tnotion by counsel in. which,
Will seeks to reopen a penalty assessment under section 1 lO(c) of the Mine Act, 30 U.S.C.
§ 820(c), that had become final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 1 IO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
Will states that he never received Proposed Assessment No. 000175599A. The Secretary
confirms that the proposed assessment was never received by Will and was returned to MSHA as
undelivered. The Secretary submits that in order to achieve proper service, she will mail the
proposed assessment to the address provided in Will's request to reopen, and that Will,
thereafter, will have 30 days after receipt to either pay or contest the proposed assessment.

31 FMSHRC 812

Having reviewed Will's request and the Secretary's response, we deny Will's request to
reopen as moot. Tii.e Secretary may proceed as she has outlined in her response, and, if the
proposed penalty is contested by Will, this case shall proceed pursuant to the Mine Act·and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC
440, 441(July2006).
.

Robert F. Cohen, Jr., Commissioner

31FMSHRC813

Distribution: .
Jeremy Tucker, Esq.
Alston & Bird, LLP
One Atlantic Ctr.
1201 West Peachtree St.
Atlanta, GA 30309-3424
W. Christian Schumann, Esq,
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myridallies: Chief
Office of Civ:ll Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Adµiinistrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health·Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

''

31FMSHRC814

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
.

WASHINGTON, DC 20001

July 31, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2009-1128
A.C No. 15-15138-171766
·,

·.

v.

Docket No; KENT 2009-1129
A.C; No. 15-18250-171772
Docket No. KENT 2009-1130
A.C. No. 15-18721-171781

McCOY ELKHORN COAL CORP.

Docket No. KENT 2009-1131
A.C. No. 15-18775-171784

BEFORE: Duffy, Chairman; Jordan, Yo~g, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). ()n May 26, 2009, the Commission received requests to
reopen four penaity as$essmeri.ts issued to McCoy Elkhorn Coal Corporation ("McCoy") that may
have become tlnru orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order ofthe Commission. 30 U.S.C. § 815(a).
McCoy states that it never received Proposed Assessment Nos. 000171766, 000171772,
000171781 and 000171784. The Secretary states that Federal Express attempted delivery
without success on December 26, 2008, for all four proposed assessments. She suggests that it is

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2009-1128, KENT 2009-1129, KENT 2009-1130, and KENT
2009-1131, all captioned McCoy Elkhorn Coal Corp., and involving the same factual and
procedural issues. 29 C.F.R. § 2700.12.
31FMSHRC815

possible that the mine offices were closed for the holid;:tys; The Secretary submits that in order to
achieve proper service, she will re-serve the proposed assessments by Federal Express at the
address of record, and that McCoy will th~n have 30 days afte~ receipt to either pay or contest the
proposed assessments.
Having reviewed McCoy's requests and the Secretary's response, we deny McCoy's
requests to reopen as moot. The Secretary may proceed as she has outlined in her response, and,
if any of the proposed penalties are contested by McCoy, this case shall proceed pursuant to the ·
Mine Act and the Commission's.~Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co.,
28 FMSHRC 440, 441 (July 2006).

Robert F. Cohen, Jr.,.Commissioner

31 FMSHRC 816

Distribution:
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept Of Labor
1100 Wilson Blvd.~ 25th Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 817

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW.
SUITE 9500
WASHINGTON, DC 20001

August 4, 2009
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA2009.. 1562·
A.C. No. 46-09152-177347

v.
EASTERN ASSOCIATED COAL, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Actof 1977,30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 11, 2009, the Commission received from Eastern
Associated Coal, LLC ("Eastern") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 1OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60{b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC818

Eastern states that its safety director received the assessment at issue, but shortly
thereafter developed health problems and ultimately never returned to his position. Eastern
explains that the safety director was the only official at the mine who knew of the assessment
until the mine received a delinquency notice regarding the assessment. The Secretary states that
she does not oppose reopening in this instance, and her response included a copy of the late-filed
assessment that Eastern marked to show which penalties it wishes to contest, as well as
information indicating that Eastern paid the uncontested penalties.
Having reviewed Eastern's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R..
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file 'a petition for a8sessment
ofpenaltywithin45 days of the date of this order. See 29 C.F.R § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 819

Distribution:
Jonathan R. Ellis, Esq ..
Steptoe & Johnson, PLLC, Eight Fl.
Bank One Ctr.
P.O. Box 1588, Charleston, WV 25326-1588
W. Christian Schumarin,, Esq. .
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25t1t :floor
Arlington, VA 22209-3939 .
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 820

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
. 601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH.
ADMINISTRATION (MSHA)

Docket Nos. SE 2006-148-M
SE 2006-163--M

V.

SCP INVESTMENfS; LLC

BEFORE: Dilffy, Chainnan;·Jordan, Young, :and Cohen, Commissioners

DECISION
BY THE COMMISSION:
In these civil penalty proceedings arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2006) (''Mine Act" or "Act"), Judge Jerold Feldman vacated all
11 citations and the one order at issue. 30 FMSHRC 544 (June 2008} (ALJ). Thejudge did so as
a sanction for the Department of Labor's Mine Safety and Health Administration ("MSHA")
inspector's refusal to permit a representative of the operator to accompany him on the inspection
that occurred in connection with the issuance of the citations and order, an exclusion which the
judge determined to be contrary to section 103(f) of the Mine Act, 30 U.S.C. § 813(f). 1

1

Section 103(f) of the Mine Act states in pertinent part:
Subject to regulations issued by the Secretary, a
representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical ·
inspection of any coal or other mine made pursuant to the
provisions of subsection (a),.for the purpose of aiding such
inspection and to participate in pre- or post-inspection conferences
held at the mine.... Compliance with this subsection shall not be a
31 FMSHRC821

..

.

,

.

The Commission subsequently granted the Secretary of Labor's petitiOn for discretionary
review. This case poses the question of whether the judge erred in dismissing the order and
citations because the operator was not permitted to accompany the MSHA inspector on his first
inspection of this mine.
Commissioners Young and Cohen, with Chairman Duffy concurring, affirm the judge's
finding that the mine operator's walkaround rights were violated in this instance. CQmmissioner
Jordan does not reach the issue. However, because of the jurisdictional language of the last
sentence of section 103(f), all Commissioners agree that the judge erred as a matter of law when
he vacated the Secretary's citations and dismissed these proceedings. Accordingly, the judge's
decision is vacated.
On remand, the judge is permitted to consider the effect of the improper denial of the
operator's walkaround rights on the operator's ability to present its case. Commissioners Young
and Cohen would apply an exclusionary rule. Under their formulation, the judge should
determine what prejudice, if any, resulted from the denial of the operator's walkaround rights.
The judge could then exclude evidence resulting from the inspection, where the operator
demonstrated the existence of prejudice as a result of not being present during the inspection.
Chairman Duffy would have the judge exercise his discretion to decide whether the Secretary
established a violation and (if so) the appropriate penalty, talcing into account that the failure to
permit the walkaround may have prevented the operator from offering probative evidence to
support its case. Commissioner Jordan believes that the inspector's exclusion of the owneroperator from the inspection has no effect on the trial of this case.
The separate opinions of the Commissioners follow.

jurisdictional prerequisite to the enforcement of any provision of
this Act.
30 u.s.c. § 813(f).
31 FMSHRC 822

Opinion of Commissioners Young and Cohen:
This case involves the relationship of MSHA with a new ancJ very small operator. Alld,
as Judge Feldman recognized, :fundamentally this case involves how our government relates to its
citizens.
I.
Factual and Procedural Background
Although the opinions in this case focus on legal issues, it is very important to understand
the facts out of which the case arises. 1 ·SCP investments took.over and began operating the Old
County Limestone Quarry in Crab Orchard, Tennessee, in September2005. Show Cal!se Order,
30 FMSHRC at 341. It had three employees; including the owner-operator, Pat Stone. SCP
Show Cause Reply at 1. According to information pro~ded byMr. Stone, in September 2005
SCP purchased county property in Cumberland County, Tennessee, that included an existing .
limestone quarry that had been used for 50 years in connection with county road work. Id. at 1.
There is no record evidence of when the.county ceased operating the quarry or regarding MSHA
regulation of the quarry's operations, if any. SCP eventually commenced rock crushing
operations at the site, which it called the Old County Quarry. Id.; 30 FMSHRC at 544.
Mr. Stone has stated in the record that he has a construction background but no mining
experience. He was not at all familiar with MSHA, nor with legal requirements of the Mine Act.
On December 13 or 14, 2005, an MSHA inspector, Jeff Phillips, arrived to inspect the Old
County Quarry, which at tha~ point had been operating for about three months. Upon learning
that the quarry did.not have an MSHA identification number, Mr. Phillips had Mr. Stone fill out
an application, and Mr~ Phillips obtained the identification number. Then Mi. Phillips asked
Mr. Stone about the employees' mining experience and their training under MSHA' s training
1

Because of the procedural history, the record in the case is sparse. Our description of
the facts is based on the judge's Order to Show Cause, 30 FMSHRC 341 (Mar. 2008) (ALJ), and
the submissions of the parties, both to the judge and on review. The operator has not been
represented by counsel at any point, and its submissions have· been in the form of letters from its
owner, Pat Stone. There are factual a8sertions in the letters to the judge from Mr. Stone which
are neither confirmed nor denied by the Secretary. The most detailed letter by Mr. Stone is dated
April 30, 2008. In the letter (hereinafter referred to as "SCP Show Cause Reply"), he replied to
the Secretary's response to the judge's show cause order (which required the Secretary to explain
why the citations should not be vacated because of the inspector's refusal to permit Mr. Stone to
accompany him during the inspection). Since Judge Feldman issued a Further Order to Show
Cause on May 8, 2008, 30 FMSHRC 563 (May 2008) (ALJ), which acknowledged Mr. Stone's
letter, and since the Secretary responded to Judge Feldman's Further Order to Show Cause on
May 29 and did not dispute the factual representations in Mr. Stone's April 30 letter, we are
relying on some of Mr. Stone's factual representations, as well as the Secretary's, when they are
··
not inconsistent.
3 l FMSHRC 823 ·

regulations (set forth in Part 46 of Title 30 of the Code of Federal Regulations): Mr. Stone
explained that one of his employees had worked for him for eight years, the other had worked for
him for six years, and that they were both excellent employees. However, Mr. Stone was not
aware of the training requirements of Part 46.
At this point, Mr. Phillips issued a section 104(g)(l) withdrawal order and escorted
Mr. Stone off the premises. 2 S. Br. at 2; SCP Show Cause Reply at 1. The violation was
designated significant and substantial ("S&S"}? He had Mr. Stone contact his employees on the
radio and direct them to leave the premises also. Mr. Phillips then told Mr. Stone that he was
going to inspect the pit and the equipment. Mr. Stone asked Mr. Phillips if he could accompany
the inspector.4 Mr. Phillips refused to allow Mr. Stone to accompany him.· The reason for
Mr. Prullips' refusal apparently was that Mr. Stone did not have 24 hours riew miner training
pursuant to 30 C.F.R. § 46.5(a). This is the basis set forth iii the section 104(g)(l) order issued
by Mr. Phillips. Mr. Phillips refused to allow Mr. Stone to re;..entetthe mine site to retrieve keys
which were left in several loaders.

of

Following the inspection~ Mr. Phillips issued 11 more citations. He info:Itned Mr. Stone
that he and
employees_ could not return to the mine until they were trained. Mr. Phillips ·

his

2

Section l04(g)(l) provides:

If, upon any inspection or investigation pursuant to section
103 of this Act, the Secretary or an authori~ed representative sh.all
find employed at a coal or other mine a miner who has not received
the requisite safety training as determined under section 115 of this
Act, the Secretary or an authorized representative shall issue an
order under this section which declares such miner to be a hazard
to himself and to others, and requiring that such miner be
immediat~ly withdrawn from the coal or other mine, and be
prohibited from entering such mine until an. authorized · .
representative of the Secretary determines that such miner has
received the training required by section 115 of this Act.
30 u.s.c. § 814(g)(l).
3

The S&S terminology is taken from section 104(d){l} of the Act, 30 U.S.C.

§ 814(d)(l ), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
4

We assume that Mr. Stone was not specifically familiar with his "walkaround rights''
under section 103(f) of the Mine Act, 30 U.S.C. § 813(f), but was simply requesting the
opportunity to accompany a government official who was inspecting his property.
31FMSHRC824

indicated that the training must include 16 hours ofdassroom training and 8.hours of training on
the job. SCP Show Cause Reply at 1-2.
Mr. Stone contacted the. Tennessee Department of Labor, and made arrangements for
classroom training for himself and his employees at a mine safety school on December 19 and
20. To obtain the on-the-job training, Mr. Stone contacted several mines in the area which
agreed to provide the training. However, Mr. Phillip~ would not accept this training, apparently
because it would have been at a different kind of quarry. The only other possible quarry was
Mr. Stone's direct competitor, Franklin Limestone, and the competitor refused to provide the ·
training to Mr. Stone and his employees. Mr. Stone then asked Mr. Phillips to. provide the ..
training. At this point, it appears that Mr. Phillips agreed to let Mr. Stone provide the training for
his employe.es. Id. In any event, Mr. Phillips terminat¢the section 104(g)(l) order on
·
December 21, 2005. The other violations were terminated the next day, presumably after
Mr. Stone and his employees had r~turned to the quarry and fixed the problems.
A couple of p~ints emerge from the factual pattern in this case. As shown by his lett~rs,
Mr. Stone was very angry. But significantly, he obeyed all of Mr. Phillips' orders, obtained the
required training for himself and. his employees, and promptly abated the violations identified by
Mr. Phillips. The record before us indicates that Mr. Stone was in no way a rogue operator.
Prior to Mr· Phillips' inspection, Mr. Stone was not aware of his legal responsibiliti~s; Upon
finding out what he was required to do, he complied with the law. .
MSHA issued a penalty assessment in February 2006 and another the next month,
proposing penalties totaling $1,087. SCP subsequently contested all 12 of the proposed
penalties. ·
·
·
After reviewing the case, Judge Feldman issued an Order to Show Cause on March 31,
2008. 30 FMSHRC at 341. He was concerned that the MSHA inspector had not permitted
Mr. Stone to accompany him on the inspection. Id. at 342. The judge recognized that under
section lOJ(f) and our case law, the right of the operator to accompany the inspector during an
inspection is an important right which may only be curtailed by the Secretary's regulations. 5
Thus, Judge Feldman issued an order requiring the Secretary to show cause why the citations
should not be vacated because the MSHA inspector violated section 103(f). The judge
specifically directed the Secretary to respond to particular questions relating to the possible
denial of Mr. Stone's rights under section 103(f). Id.
The Secretary responded to the Order on April 16, 2008. S. Resp. to Show Cause Order.
Basically, the Secretary argued that the purpose of the section 103(f) walkaround rights is to
5

Section 103(f) of the Mine Act grants both operator$ and representatives of miners what
are known as "walkaround" rights. See 30 U.S.C. § 813(f). These rights include the qualified
rights to accompany MSHA personnel during their inspection of a mine and to participate in
conferences at the mine both before and after the inspection. Id.
31 FMSHRC 825

assist the inspector in his inspection, that the inspector has discretion to limit who may
accompany him on an inspection, that section 115 of the Mine Act, 30 U.S.C. § 825, requires
training of new miners, and that even if there was a violation of section 103(f), it should not
affect any citations and penalties issued as a result of the inspection. ·Id. at 2-9. The Secretary
did not respond to Judge Feldman's specific questions.
Judge Feldman issued a Further Order to Show Cause on May 8, 2008, noting the
generalities of the Secretary's response to his first Order. 30 FMSHRC at 563. He stated,
correctly in our view, that the discretion ofMSHA inspectors in conducting inspections must be
''balanced with the fundamental right of a mine operator to be present during an inspection." Id.
at 564. He set forth five specific questions for the Secretary to respond to, including the
identification of specific regulations, Interpretive Bulletins, and Memoranda which supported the
denial of Mr. Stone's right to accompany the inspector; the specific training that must be
completed before a mine operator or miners' representative is permitted to accompany an:
inspector; and the hazards to which Mr. Stone would have been exposed if he had accompanied
Mr. Phillips. Id. at 565. Additionally, Judge Feldman recognized that dismissal of the citations
and orderis a harsh sanction. Therefore, he asked the Secretafy to identify, assuming that the
operator's section 103(f) fights were violated, lesser sanctions which could be imposed. Id.
The Secretary responded to this Order on May 29, 2008. S. Resp. to Further Order to· ..
Show Cause. In response to the judge's final question, the Secretary argued that dismissal is an ·
impermissible sanction. Id. at 5-6. The less drastic remedy offered by the Secretary·was to have
the judge adjudicate the case on the merits, but take into consideration that Mr. Stone was unable
to observe the conditions at the time that the inspector observed them. Id. at 6-7. Thus, the "less
drastic remedy'' suggested by the Secretary would, in effect, hobble the operator in making his
defense at trial after being denied his right to accompany the inspector.
Following receipt of the Secretary's response, Judge Feldman issued his Dismissal Order
on June 24, 2008. 30 FMSHRC at 544. He found that MSHA had abused its discretion in
refusing Mr. Stone's request to accompany the inspector. Id. at 550. He :further noted that the
cited violative conditions had been terminated, and thus there were no continuing unresolved
safety issues. In order to deter future unwarranted denials of a mine operator's walkaround
rights, Judge Feldman dismissed the order and citations. Id.

n.
Disposition
The Secretary argues that the plain meaning of section 103(f) prohibits a judge from
vacating citations and orders as a sanction for the issuing inspector's failure to accord
walkaround rights. S. Br. at 8-JO. The Secretary states that even if the judge were authorized to
so sanction the Secretary and MSHA,.it was not appropriate in this case, because
failure to
permit the exercise of walkaround rights did not prejudice the operator, and the lesser sanction of

the

31 FMSHRC 826

taking the fajlure into account in his decision on the merits of citations and ()rderwas available to
. ·... ·
the judge. Id. at 11-15. The Secretary also takes issue with the judge's conclusion that
Mr. Phillips could have permitted Mr. Stone to accompany blm the inspection under section ..
46.l l(f) ofMSHA's hazard training regulations. Id. at18-21. The operat()r, which has actedpro
·
·
·
se throughout this case, did not file a response brief.

on

A.

Mr. Stone's Walkarouµd RigptsUnder Section 103({)

The first question to consider.is whetherJudge Feldman correctly detepnined that
Mr. Stone's rights under section 103(f) were Violated. At the outset, we must recognize that the ..
statut~ry lat1guageis mandatory: "Subjectto regulations issued by the Secretary,6 a
.. . . ·
representative of the operator ... shall be given an opportullity to acconipany the Secretary or his
authorized representative during the physical inspection of any coal or other ijline macle p1JtSuant
to the provisions of subsection (a) ...." 30 U.S.C. § 813(f) (emphasis added). In Consolidation
Coal Co., 16 FMSHRC 713, 719 (Apr. 19.94), the 9ommissionnoted that "[t]he right of a
miner's representative to accompany the. inspector on all section. I 03 inspections has been
consistently .recognized by the Commission and the courts." Moreoy.er, the Commission has
recognized the critical role that section 103(f) plays in the overall enforcementscheme of the
Act, and has cautioned that "[w ]e are not prepared to restrict the rights afforded by that section
absent a clear indication in the statutory language or legislative history of an intent to do so, or
absent an appropriate limitatio~ imposed by Secretarial regulation.'' Consolidation Coal Co., 3
FMSHRC 617, 618 (Mar. 1981). We agree With.the judge.that Mr. Stone's walkaround rights
were violated, although we differ somewhat in
reasoning.
· ·

oilr

The Secretary's position to the contrafy is not convincing. She relies on a 1978
Interpretive Bulletin which states that the inspector has discretion in conducting the inspection,
and that the purpose of the section 103(f) walkaround rights is to aid the inspection. S. Br. at 1516. It is certainly true that the walkaround rights under section 103(f) are "for the purpose of
aiding such inspection." 30 U.S.C. § 813(f). Section 103(f) of the Mine A.ct is.essentially
identical to section 8(e) of the Occupational Safety and Health Act ("OSH Act");which similarly
contains language that the OSH Act "walkaround right" is "for the purpose or'aiding such
7
inspection." 29 U.S.C. § 657(e).
In Chicago Bridge &Iron Co. v. OSHRC, .535. F.2d 371, 376
.
.

.

.

.

6

The "regulations" referred to in section 103(f) include any of the Secretary's regulations
··
which may be implicated by the exercise of walkaround rights. ·
7

Section 8(e) of the OSH Act, 29 U.S.C.§ 657(e), contains wording similar to the Mine:
Act's walkaround provision:
Subject to regulations issued by the Secretary, a .
representative of the employer and a representative authorized by
his employees shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
31 FMSHRC 827

n~ 12 (7th Cir. 1976), the court interpreted this language to mean that when representatives of the •·
operator and employees accompany the inspector, factual disputes can often be resolved on the
site, thu5 avoiding the expense of trying such issues. The Secretary's limited view of the
Walka.round rights iii this case diminishes the role of the operator and employee representatives iii
"aiding" the inspection. S. Br. at 16.

fu discussing the inspector's discretion iii limiting walk:around rights, the Secretary cites
our decision in Secretary ofLabor on behalf of Wayne v. Consolidation Coal Co., 11 FMSHRC
483, 489 (Apr. 1989), in which we found that an inspector did not abuse his discretion in
excluding a miners' representative from a post-inspection meetiiig when there were already three
members of the union safety committee and one representative of the union international iri
attendance. S. Br. at 16~ 17. Certainly there is· a huge difference in refusing to permit a fifth
representative of miners to be present compared with excluding a single owner-operator.
The Secretary next argues that the inspector did not actually exclude Mr. Stone based on
his lack of section 46.5 new miner training, 30 C.F.R.§ 46.5. 8 S. Br. at 17. This is a strange
argument given that the Secretary, in her Response to Further Order to Show Cause, speeifically ·
relied on section 46.5, as_~ell as section 46.11 of her training regulati6ns, 30 C.F.R. § 46;1 l,9 in

·inspection of any workplace under subsection (a) of this seetion for
the purpose of aiding· such inspeetion. Where there is no .
authorized employee representative, the Secretary or his authorized
representative shall consult with a reasonf1ble number of employees
concerning matters of health and safety in the workplace.
·
8

Section 46.S(a) requires that operator$
·provide.each new miner with no foss than 24 hours of training a5
prescribed by paragraphs (b), (c), and (d). Miners who ·have not yet
received the full 24 hours of new miner training must work where
an experienced miner can observe that the new miner is performing
his or her work in a safe and healthful manner.

30 C.F.R. § 46.S(a). Section 46.S(b) addresses seven aspects of training that must be provided
before a miner can begin work, section 46.S(c) requires two other areas of training that must be
provided within 60 calendar days after a new miner begins working, and the balance of the 24
hours of training must be provided within 90 calendar days, according to section 46.S(d). 30
C.F.R. § 46.5(b)-(d).
9

Section 46.11 provides:
(a) YOU must provide site-specific hazard awareness .
training before any person specified under this section is exposed
31 FMSHRC 828

justifying Mr· Phillips' re~al to permit Mr. Stone to accompany him on the inspection.
S. Resp. to Further Order to Show Cause at 1-3. Additionally, Mr. Phillips relied on section 46.5
in the 104(g)(l) order.. Order No. 6122908. The Secretary states that thejudge confi,lsed the
section 104(g) order with the decision to exclude Mr. Stone from the inspection. S. Br. at 17. It
is hard to understand how the Secretary can suggest that the judge was confused when the
Secretary had previously told him that section 46.5 was indeed part of the basis for excluding Mr.
Stone.
More troubling, however, is the Secretary's further argument: "The decision to exclude
Mr. Stone from the inspection, however, was not documented by an order or citation - and was
not required to be." S. Br. at 17. While it is tru~, strictly speaking, that the inspector did not
have to issue an order or citation documenting the basis for excluding Mr. Stone, common ·
decency compels the conclusion that Mr. Stone be given something in writing providing him the
legal basis for his· exclusion from the inspection, particularly when the one Written record
actually issued by Mr. Phillips made reference solely to section 4.6.5. When the government
excludes a citizen from exercising a statutory right, the government ought to document its
reasons in writing at some point prior to being ordered to do so in a judge's Order to Show
Cause.

to mine hazards.

(b) You must provide site-specific hazard awareness
training, as appropriate, to any person who is not a miner as
defined by§ 46.2 ofthis part but is present at a mine site,
. including: ... ,

(d) Site-specific hazard awareness training is information or
instructions on the hazards a person could be exposed to while at
the mine, as well as applicable emergencyprocedures. The training
must address site-specific health and safety risks ....
(e) You may provide site-specific hazard .awareness training
through the use of written hazard warnings, oral. instruction, signs.
and posted warnings, wa1karound training, or other appropriate ·
means that alert persons to site-specific hazards at the mine.
(:t) Site-specific hazard awareness training is not required
for any person who is accompanied at all times by an experienced
miner who is familiar with hazards specific to. tµe mine site.

30 C.F.R. § 46.11.
31 FMSHRC 829

In any event, as the Secretary now apparently concedes, section 46'.5 is riot a proper basis ··
for excluding Mr. Stone.. Section 46.5 specifically refers to training which a new miner must
have before he or she can''work" ata mine. As noted by Judge Feldman, 30 FMSHRC at 548,
by its terms section 46.5 does nofrelate to inspections of the mine. This coneiusion is supported
by our case law, in which we have held that a non-miner may he a representative of miners and
participate in an inspection under section 103(f). See, e.g., Emery Mining Corp., IO FMSHRC
276 (Mar. 1988), aff'd in pertinent part and rev'd on other grounds sub. nom. Utah Power &
Light Co. v. Sec'y ofLabor, 897 F.2d 447 (10th Cir. 1990).
This leaves section 46.11 a8 the sole basis for excluding Mr. Stone from the inspection.
Section 46.11 requires the mine operator to provide site-specific hazard training to any person
·. ·who is not a miner but is present at the mine site. It further provides, in subsection (f), that ·site'"
specific hazard training is not required for aperson ''who is accompanied at alltimes by an
experienced miner who is familiar with hazards specific to the mine site." 30 C.F.R. § 46;1 l(f).
Judge Feldman addressed this issue by finding that Mr. Phillips, as an experienced mine safety
official well aware of mine safety issues, was an "experienced miner" within the meaning of ·
section 46.l l(f). 30 FMSHRC at 549. In her brief, the Secretary argues thatari MSHA inspector
can never constitute an "experienced miner" under section 46. l l(f) because the inspector is not a ·
"miner" within the meanfug of section 46.2(g)(l ), i.e., the inspector is not working "in mining
operations." S. Br. at 18. This begs the point. Mr. Phillips, as a former miner and an. ·
experienced inspector, has at least as much knowledge of safety hazards generally as an
experienced miner.
The Secretary's next argument relative to section 46.11 is that the judge's finding that
Mr. Stone could accompany Mr. Phillips as an "experienced miner" defeats the purpose of
section 103(t) in that the walkaround rights are for the purpose of aiding the inspection. S. Br. at
19. This overlooks the fact that Mr. Stone had been working at the quarry for three months and
supervising the work of the other miners, while it was the first visit for Mr. Phillips. He was far
more familiar with the mine site than Mr. Phillips and, in that respect, certainly could have aided

him.

'

The Secretary's final argument is that the ALJ's interpretation of section 46.11 would
have made Mr. Phillips the "guardian of Mr. Stone's safety during the inspection." Id. at 19.
This is probably the Secretary's best argument, and, in the abstract, has some attraction.
However, it overlooks a critical fact in this case. Based on Mr. Stone's letter of April 30, 2008,
which has not been contradicted by the Secretary, it appears that after Mr. Stone obtained the
classroom training for himself and his employees, Mr. Phillips permitted Mi. Storie to provide
the on-the-job safety training to his employees. SCP Show Cause Reply at 2. If Mr. Stone had
the ability to provide on-site safety training, he certainly would have been able to accompany
Mr. Phillips on his inspection without Mr. Phillips having to become his "guardian."
Section I 03( t) provides that a representative of the operator "shall" be given the
opportunity to accompany an MSHA inspector, subject to regulations issued by the Secretary. It

31 FMSHRC 830

is clear that the reasons advanced by the Secretary to justify the exclusion of Mr. Stone from the .
inspection are not valid, viewed within the context of the Secretary's regulations.

B.

The Judge's Vacature of the Citations and Order

While the inspector's denial of Mr. Stone's walkaround rights was improper in this .
instance, we conclude that vacature of the ciiati011s and order was not a remedy that was
available to the judge. Hi In section 103(f), Congress spoke directly to the issue of whether an
inspector's failure to adhere to section 103(f) can impact MSHA' s ability to use that inspection to
enforce the terms of the Mine Act. Section 103(f) concludes by stating that "[c]ompliance with
this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of
this Act." 30 U.S.C. § 813(f). That provision must be read as a statement that MSHA's failur~;
either intentionally or unintentionally, to permit any of the specified walkaround rights under
section 103{f), even if contrary to the terms of section 1O;l{f), does not prevent MSHA from
·
taking an enforcement action. ·
The language covers the issuance of citations and orders for violations of the Mine Act,
as occurred in this instance.· Section 103(a) of the Mine Act, referenced in.section 103(f),
authorizes mine inspections·ror, among other purp()ses, "determining whether there is
compliance with the mandatory health or safety standards or with any citation, order, or deci$ion
issued under this title or other requirements of this Act." 30 U.S.C. § 813(a). Consequently; the
language of section 103(f) plainly means that any citation or orderissued in connection with an
inspection in which walkaround rights were not granted is valid, regardless of whether the failure
to grant the.wa}karound rights was proper or not.
The legislative history of section 103(f) confirms this interpretation. In considering the
legislation that eventually became the Mine Act, the Senate Committee responsible for drafting it
stated that, with regaJ."d to walkaround rights, the legislation

a

contains provision based on that in the [Federal Coal Mine
Health and Safety] Act [of 1969 ("Coal Acf')] requiring that
representatives of the operator and miners be permitted to
accompany inspectors .in order to assist in conducting a full
inspection. It is not intended, however, that the absence ofsuch
participation vitiate any citatioT!s and penalties issued as a result
ofan inspection.
·
·
·
S. Rep. No. 95-181, at 28 (1977), reprinted in Senate Subcomm, on Labor, Comm. on Human
Res., Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 616 (1978)

10

All Commissioners agree that the judge's vacature of the order and citations was not
permissible under the Mine A~t and must be reversed.·
.
..
31 fMSHRC 831

(emphasis added). 11 "[A]bsence ... of participation," of coll.rse, can occur not only when
walkaround rights are voliintarily not exercised, but also when the inspector refuses or otherwise
fails to permit their exercise.

In his order dismissing the proceeding, the judge did not address the legislative history
explaining section 103(f), and only indirectly addressed the pertinent last sentence of that
provision. He cited the provision's qualified requirement that representatives of the operator and
of the miners are to be given the opportunity to accompany an MSHA inspector on his
insp'ection, and stated that:
Section 103(f) does not mandate that an inspector must be
accompanied by a mine operator during an inspection~ Thus, I am
· cognizant that the failure of a mine operator to accompany an
inspector is not a jurisdictional bar to the issuance of citatic>ns for
violations of the Secretary's mandatory safety standards observed
during the inspection. However, section 103(f) provides the
"opportunity'' for the mine operator to exercise its right ·to be
present dajng an inspection. This rightcannot arbitrarily be
denied. Ill other words, jurisdiction to enforce does not provide a
license to abuse.
30 FMSHRC at 548 n.3 (citing Emery, 10 FMSHRC at 289).
The judge thus read section 103(f) to accord to an operator the qualified right to
accompany the inspector on an inspection, and the last sentence of section 103(f) to mean only
that when an operator does not exercise that right, the inspector could still inspect the mine and
issue citations and orders for what he found during his unaccompanied inspection. The judge ·
apparently found that the purpose of the last sentence was to make it clear that an operator's
failure to exercise its walk:around rights could not be used to defeat an inspector's right to take
enforcement actions as a result of the inspection in which the operator did not participate to the
·
extent to which section 103(f) permitted it to participate.
Such a reading m1sstates the purpose of the final sentence· of section 103(f). There is
nothing in either section 103(f) or the remainder of the Mine Act that indicates that an operator
would have the extraordinary power to essentially nullify an inspettion by refusing to participate
in it. Rather, the meaning of the final sentence of section 103(f) is found by reading it in the
context of the entire subsection.

11

Section 103(h) of the Coal Act provided only for the right of a representative of miners
to accompany an inspector during his inspection, and was otherwise silent on the other subjects
addressed by section 103(f) of the Mine Act. See 30 U.S.C. § 813(h) (1976).
31 FMSHRC 832

Section 103(f) states that "[c}ompliance with this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this Act." 30 U.S.C. §813(f) (emphasis
added). In the absence of a statutory definition or a technical usage of a tenn, the Commission
applies the ordinary meanillg of a word in the Mine Act. See Peabody Coal Co., 18 FMSHRC
686, 690(May1996), aff'd, No. 96-1205, 1997 WL 159436 (D.C. Cir. Mar. 3, 1997);
Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The term "[c)ompliance" is
invariably defined to mean required adherence or obligation, particularly with respect to a statute
or other legru provision. 12
·

In order to understand how the term "compliance" is used in section 103(f).. it is necessary
to look at the remainder of the provision. See Twentymile, 30 FMSHRC at 750~51 & n.7 (stating
that in order to discern a statutory or regulatory standard's plain meanillg, it is necessary to read it
in context). "Compliance with this subsection" can only be read in reference to the obligations
that section 103(f) imposes.
With regard to a mine operator's representative accompanying an MSHA inspector or .
participating in a pre- or post-inspection conference, nothing in section 103(f) can pe read to
indicate that the operator's representative is required or obligated to do so. Rather, what section
103(f) clearly does with regard to operators vis:-a-vis MSHA and its inspectors is grant a.·
qualified right: ''Subject to regulations issued by the Secretary, a representative of the operator
... shall. be given an opportunity to .... " JO U~S.C. § 813(f)'(emphasis added). A "right'' is not
something that is "[c ]ompli[ed]" with; rather, a right is something that is exercised.
Thus, there is no question that the final sentence can only mean "compliance" by MSHA
and its representatives. In an instance such as this, the only party that could prevent an operator's
representative from exercising walkaround rights, and thus the only party that could potentially
fail to "compl[y]" with that portion of section103(f), is the inspector. Moreover, it is MSHA, .
acting through the inspector, that .enforces the Mine Act. Therefore, in the case of an operator's
representative being improperly denied walkaround nghts, the last sentence can only mean that
the denial does not prevent enforcement actions from being taken by the inspector, the only party
that can fail to comply with section 103(f) in such an instance. 13

12

See Webster's Third New Int'lDictionary Unabridged 465 (1993) ("conformity in
fulfilling formal or official requirements ... cooperation promoted by official or legal authority
or conforming to official or legal norms"); The Random House Dictionary ofthe English
Language Unabridged 419 (2d ed. 1987) ("the act of conforming, acquiescing, or yielding ...
conformity, accordance ... cooperation or obedience"); American Heritage Dictionary ofthe
English Language 272 (New College ed. 1976) ("[a] yielding to a wish, request, or demand; .
acquiescence").
.
·
.
13

To be sure, section 103(f) also imposes obligations upon operators to permit miners'
representatives to participate in the MSHA inspection process, so there also can be a question of
an operator's "compliance" with section 103(f). Operators can be cited for improperly
31 FMSHRC 833

Accordingly, we conclude that the judge erred as a matter oflaw in using the failure to
allow walk:around rights as the basis to vacate the citations and order in this case. The final
sentence of section 103(f) plainly provides that enforcement actions otherwise properly taken by
MSHA cannot be vacated due to the failure of an inspector to comply with any of section
103(f)'s requirements. 14
C.

The Impact of the Denial of Mr. Stone's Rights on the Evidence Obtained by the
Secretary

This leaves the question of whether a remedy exists for the infringement of Mr. Stone's
walkaround rights: We are extremely troubled by the fact that the operator's statutory right to ·
accompanythe inspector on the inspection of Mr. Stone's own·minewas violated, andMSHA
essentially suggests that he has no legal remedy. Our government, represented by MSHA in the
one instance and by this Commission in the other, should not take the position that a citizen's
rights can be violated, leaving the citizen without any legal remedy. This idea is contrary to our
fundamental belief in ordered liberty, and to the development of Anglo-American law since the
Magna Carta nearly 800 years ago.
There is a remedy in this case, consistent with the jurisdictional language of section
103(£). In other contexts, we are familiar with the use of an exclusionary rule. If the government·
violates a citizen's legal rights by, for example, conducting an illegal search, then the :fruits of the
illegal search or other violation rriay be excluded from evidence at trial. This is not a new
conc_ept. The Supreme Court applied an exclusionary rule to illegally-obtained evidence 95 years
ago in Weeks v. United States, 232 U.S. 383 (1914).
.
An exclusionary rule is properly rooted in at least two important policy considerations.
First there is "the imperative of judicial integrity.'' Elkins v. United States, 364 U.S. 206, 222
(1960); The Court in Elkins, quoting Justice Brandeis' dissent in Olmstead v. United States, 277·
U.S. 438, 485 (1928), explained, that·
"[i]n a government oflaws, ... existence of the government will
be imperiled if it fails to observe the law scrupulously.... For
good or for ill, [the government] teaches the whole people by its
example... If the government becomes a lawbreaker, it breeds

interfering with a miner representative's walkaround rights; See 43 Fed. Reg. 17,546, 17,547
(Apr. 25, 1978). That, however, is an entirely different situation than the one presented here.
14

The only possible basis to overcome the statutory language would have to be
constitutional in nature, such as a violation of the Due Process Clause.· This complex issue has
not been presented to us.
31 FMSHRC 834

contempt for law; it invites every man to become a law unto
himself; it invites anarchy." 15
364 U.S. at 223.
The second policy consideration is deterrence of official misconduct. While this principle
did notappear in the early Supreme Court cases such Weeks, it emerged in cases such as
Elldns and Mapp v. Ohio, 367 U.S. 643 (1961), and lias become the dominant rationale for the
exclusionary rule. See, e;g., United States v. Leon, 468 U.S. 897, 916 (1984); Terry v. Ohio, 392
U.S. 1, 12 (1968) (stating that the "major thrust [of the exclusionary rule] is a deterrent one"); see
also Trant, 1981 Duke LJ. at 683-87.

as

The use of an exclusionary rule to suppress evidence obtained in violation of a statutory
·
mandate is not a novel concept. The Occupational Safety and Health Review Con:imission
("OSHRC") and courtS of appeals reviewing that Commission's decisions have, for at least the
past 30 years, acknowledged that evidence may be excluded when the walkaround provision of
the OSH Act16 is violated, when the employer can demonstrate prejudice. See, e.g., Frank Lill &
Son, Inc. v. Sec'y ofLabor; 362 F3d 840, 846 (D.C. Cir. 2004); Pullman Power Prods., inc. v.
Marshall, 655 F.2d 41, 44 (4th Cir. 1981); Marshal! v. Western Waterproofing Co., 560 F.2d
947, 951.:.52 {8th Cir. 1977); Har/Well Excavating Co. v. Dunlop, 537 F.2d.1071, 1073 (9th Cir:
1976); Chicago Bridge, 535 F.2d at376; Accu-Namics, Inc. v. OSHRC, 5'15 F.2d 828, 833-34
(5th Cir. 1975).
OSHRC, after originally finding that section 8(e) of the OSH Act confers a substantive
walkaround right, the violation of which by OSHA entitled an employer to relief, now holds, in
response to .the decisions of the courts in Accu-Namics and Western Waterproofing, that evidence
obtained in violation of an employer's walkaround rights may be excluded when the employer ·
can demonstrate prejudice in the preparation or presentation of its defense. See Titanium Metals
Corp. ofAmerica, 7 O.S.H. Cas. (BNA) 2172 (fan. 1980); Laclede Gas Co., 7 O.S.H. Cas.
(BNA) 1874 (Oct. 1979); Able Contractors, Inc., 5 O.S.H. Cas. (BNA).1975 (Oct. 1977).
Use of an: exclusionary rule by our Commission when statutory walkaround rights are
abridged would result in several differences from the approach taken by Judge Feldman. First,
the remedy is not dismissal of the citation, but exclusion of evidence obtained by virtue of the
illegal action. Thus, this remedy does not raise an issue relating to the last sentence of section
103(f). An exclusionary rule does not implicate Congress' admonition that compliance with the
As noted in Charles E. Trant, "OSHA and ihe Exclusionary Rut~: Should the
EmjJloyer Go Free Because ·the Compliance Officer Has Blundered?, 1981 Duke.L.J. ·667, 68085 (1981 ), judicial integrity has fallen out of favor as a basis for enforcing an exclusionary r\ile.
We agree with Trant that this development is unfortunate for our society.
·
15

16

See note 7, supra.
31FMSHRC835

walkaround rights subsection shall not be a jurisdictional prerequisite to the enforcement of the
Act. Under an exclusionary rule, the Secretary could issue citations, require abatement of unsafe
conditions (which, as Judge Feldman noted, is central to the safety of miners), and propose
penalties. The Secretary could only lose the ability to use evidence at trial resulting from the
illegal action. This remedy does not affect the 'jurisdictional prerequisite" language of the
statute. Indeed, it gives full effect to all of the provisions of section 103(:t), which is a goal of
statutory construction. Norman J. Singer, 2A Sutherland Statutory Construction, § 46.6 (7th ed.
2007).
Second, this remedy would in no way affect citations which did not arise in conne~tion
with the denial of the walkaround rights. Thus, in the present case, the section 104(g)(l)order
would be completely unaffected because inspector Phillips learned of the absence of training
separate from his inspection of the mine site. There could be other citat_ions in this case which
would also be unaffected by exchis1on of evidence from the inspection itself. This would have to
be determined by the judge.
·
·
Exclusionary rules are· rules of evidence and are historically judge made. This
Commission has the authority to promulgate rules.of evidence which apply in hearings before our
administrative law judges.. We can do this. either in rulemaking or in our decisions. Hence, there
is no legal principle which would prevent us from promulgating an exclusionary rule in this case..
Chairman Duffy does not specifically endorse application of the exclusionary rule for
violations of walkaround rights under the Mine Act. He suggests that a judge can "take into
account" an improper denial of walkaround rights in considering whether 'a violation occurred or
when settillg a penalty for a violation. Slip op. at 19. However, our colleague proposes no
.
standards for an administrative law judge fo.apply. This approach is not sufficient~ a.rld provides
inadequate guidance. With
exclusionary rule, a Commission judge would apply a two-step
process in a situation where an operator contends that its representative was riot permitted to
participate in an MSHA inspection under section 103(f). Based on evidence adduced in a
suppression hearing or otherwise, the judge first would determine whether the operator's
walkaround rights were indeed violated. 17 If so, the jlidge would then determine what prejudice,

an

17

Contrary to Chairman Duffy's suggestion, we would not mandate a separate
suppression hearing. Slip op. at 19. The determination of whether an operator's walkaround
rights were violated could be made in a number of ways. If the relevant facts alleged in a motion
to exclude evidence were essentially uncontested, a ruling could be made based on the pleadings.
A suppression hearing would only be necessary if material facts relating to exercise of the
walkaround rights are disputed. The point where we differ from our colleague, in addition to
urging that the Commission provide its judges with standards to apply in these situations, is that
we believe that the issue should be addressed prior to hearing.
31FMSHRC836

if any, resulted from the violation. 18 Depending on the outcome of these detenninations, the
judge could exclude none, some, or all of the evidence resulting from the inspection.
Commissioner Jordan states that the failure of an MSHA inspector to permit a
representative of the operator to accompany him on an inspection "does not curtail the
inspector's right to enter and inspect the mine." Slip op. at 22. We fully agree. As stated supra,
with an exclusionary rule, the inspector is in no way prevented froin entering a mine and ordering
the operator to take such action as is necessary to ensure the safety of miners. Commissioner
Jordan also states that:"[ a]dopting a policy-designed to deter official misconduct implies that the
officials in question have an incentive to skirt the· law's requirements~" Id. at 23. We are not
implying ill any way .that MSHA inspectors have an incentive to skirt the law's requirements, or
that such is anything but a very unusual occurrence.

In summary, on remand.we would instruct the judge to detennine what, if any, evidence
proposed for admission by the Sec{"etary should be excluded because of prejudice to the operator.
Thereafter, thejudge should proce~ to trial. ·
·

Robert F. Cohen, Jr., Commissioner

In all ·of the OSiI Act cases cited h~rein, 'the courts found that employers either did not
allege, or did not establis~ prejudice. However, these cases generally involved situation8 where
the courts also found that the OSHA inspectors "substantially complied" with the walkaround
requirements of section 8(e) of the OSH Act and/or found that the employers did not assert
walkart>und rights at the time of the inspection. For example, after the inspection in Western
Waterproofing, the OSHA compliance officers 3sked the employer's representatives if they
wanted to accompany the compliance officers back to the site of the inspection, and the
employer's representatives declined the iilvitation. 560 F.2d at 951. In the present ca8e,
Mr. Stone was totally excluded from the Old County Quarry for about a week after the MSHA
inspection, and could not have viewed the site as Mr. Phillips had .viewed it at the time of the
inspection.
.
18

31 FMSHRC 837

Opinion of Chairman Duffy:
I agree with my colleagues, Commissioners Young and Cohen, that MSHA' s training
regulations did not provide a basis by which Phillips could exclude Stone from the inspection.
Even though Stone at the time lacked the required training to work at the mine, there is no
disputing that walk.around rights under section 103(f) may be exercised by· non-miners.
Further, my colleagues correctly dismiss the Secretary's cont~ntiol1S that Phillips could
have also forbade Stone from accompanying Phillips on his inspection becaus~ Stone lacked the
site~specific hazard training generally required of non-miners by 30 C.F.R § 46.11. Nothing in
the record indicates that Phillips even considered that Stone may have had a right, as SCP's
representative, to be included on the inspection as a non-miner; rather, Phillips appears to have
viewed the section l04(g) withdrawal order as. entirely dispositive of Stone's right to be at the
mine in any capacity. Moreover, what little evidence there is shows tlillt not only had Stone been.
supervising operations at the mine for some time, but when MSHA needed .someone to train the .
other miners at the mine the next week, it looked to Stone to provide that training. For the
Secretary to now claim that Phillips could have properly refused Stone's walkaround request
because Stone lacked the-training required of non-miners makes little sense. 1
I also agree with my colleagues that the plain meaning of the final sentence of section
103(f) prevents a judge from vacating citations and orders issued as the result of an inspection in
which the operator was not permitted to participate ip. contravention of section 103(f). Where I
part company with my colleagues is in the proposed. "remedy'' for an inspector's impermissible
failure to grant walkaround rights.
To be sure, an operator's right to observe an inspection, while not inviolable, maybe key
to its ability to effectively contest an allegation contained in a citation or order. That is
particularly the case where the only evidence supporting the allegation is based on an inspection
conducted by MSHA from which an operator's representative was absent. In a case in which an
operator's representative was improperly denied walkaround rights, it would be unfair to the
operator to necessarily accord the inspector's observations the same evidentiary weight they
would be accorded if the inspector had been accompanied on his inspection by an operator's
representativy. In the latter instance, the operator would be able. at hearing to contest, or
corroborate, any or all of the inspector;s account.
1

l note that my colleagues do not address the judge's determination that section 46.1 l
training was not required in this instance because of the subsection 46.1 l(f) exception. See 30
FMSHRC at 549. I believe the judge in so doing misinterpreted section 46.11 .. By employing
the term ''you" in multiple instances, the regulation dearly directs operator action with regard to
site-specific hazard training. It thus would be inconsistent to interpret its final .subsection,·
subsection (f), as contemplating that an MSHA inspector could serve as the "e~perienced miner''
that would accompany arourid mine property any person that had not received the otherwise
required training.
31FMSHRC838

While the Secretary in her brief touches upon this subject and comes to the conclusion
that the operator was not prejudiced by the denial of walkaround rights in this case (see S; Br. at
13-14), the extent to which the citationS and orders depend on what the mspector found during
his Unaccompanied. inspection can only be determiried· after factual record in this case is .
developed. It appears that the Withdrawal order and ·some of the citations were issued on the
basis of what Phillips learned from speaking with Stone. Thus, any failure by Phillips to permit
Stone to accompany him on his inspection should be irrelevant to determining whether the
violations alleged in that order and those citations actually occurred, and the appropriate penalties
if they did occur.

a

Other citations, however, contain allegations of violations derived from the inspection of
the mine property itself. In those instances, the judge may find during the hearing that the
inspector's improper denial of walkaround rights is preventing the operator from presenting
probative evidence in support of its contest. If he so finds, I believe the judge, in deciding
whether the Secretary established the violation and, if so, the appropriate penalty for that
violation, has the discretion to take into account the fact that the operator was so handicapped in
its defense.
I believe this approach is much simpler than that of my colleagues, who would have a
judge in an instance such as this hold a separate suppression hearing on any evidence obtained as
the result of an inspection from which an operator has been excluded in violation of section ·
103(t). ·Slip op. at 14-17. Given that this issue so rarely arises, I do not see the need for
Commission judges to conduct separate suppression hearings.
Moreover, as my colleagues admit, evidence would only be excluded if the operator could
establish prejudice to its defense from the inspector's refusal to grant a walkaround rights
request. Id. at 16-17. I believe the existence and extent of such prejudice is best determined
during the hearing on the merits of the violation, not in a separate pre-hearing proceeding.2
Further, I believe that, in the end, Commission judges are in the best position to accord
weight to evidence, including that which was obtained during an inspection in which walkaround
rights were improperly denied. I would thus not prevent them from considering such evidence,
but rather entrust them with taking the circumstances of the inspection into account in reaching
their decisions on violations and penalties.
Finally, I cannot help but think that the acrimony that appears to have developed in this
case between MSHA and the operator could have been avoided if MSHA and Inspector Phillips
had handled the matter differently. Although it is up to MSHA to determine its inspection

2

While my colleagues suggest that a separate proceeding on suppression may not be
necessary, and that the issue can simply be addressed through pleadings (slip op. at 16 n.17), I am
inclined to doubt that a judge would want to rule on the essentially factual question of prejudice
Without a hearing.
31 FMSHRC 839

techniques, the. goals of the Mine Act. clearly would have been better served iff;lhillips' first visit
to ~e Old County Quarry had been carried out as less of a Mine Act enforcement effort and more
as an opportunity to ·educate a new operator regarding its obligations under the Mine Act. In my
opinion, MSHA and Phillips could have done so while keeping well within both the letter and the
.
·. . .
.
spirit of the Mine Act.

\

31 FMSHRC 840

Opinion of Commission~ Jord~:
I agree that the judge ei-re<l as a matter oflaw when he vacated the citations and order
issued by the Mine Safety and Health Administration ("MSHA") inspector who, the judge
concluded, had erron~usly deprived the. operator of its right, under section 103(f) of the Mine
Act, to accompany the inspector. 1 I therefore join my colleagues in vacating the judge's
dismissal order and remanding these penalty cases for further proceedings. I Write separately,
however, because I disagree with the views expressed by my colleagues regarding the ability of
the Secretary to present her case on remand.
My colleagues hold the view that SCP was wrongly deprived of its right to accompany
Inspector Phillips,2 and that the deprivati9n of this statutory right should impact the Secretary's
ability to present evidence in S!J.pport. of the citations and order that were issued by the inspector.
Specifically, Commissioners Cohen and Young believe the Commission should apply an
exclusionary rule to the evidence the inspector obtained during his inspection. Slip op. at 14-17.

In promulgating the walkaround rights in section 103(f), Congress pointedly stated that
"compliance with this subse_ction shall not be a jurisdictional prerequisite to the enforcement of
any provision of this Act." My colleagues agree that this language bars the outright dismissal of
the inspector's citations and.order, but they maintain that excluding evidence obtained during the
inspection "does not raise an issue relating to the last sentence ofsection103(f)." Slip op. at 15.
The evidence is appropriately excluded because, in their view,it was obtained "by virtue of the
illegal action." Id. I disagree. Unlike in Fourth Amendment cases, to which my colleagues cite,
the health and safety violations observed by Inspector Phillips do not constitute evidence
obtained by virtue of an illegal action.
'

'

1

In section 103(f), Congress provided in relevant part that:
Subject to regulations issued by the Secretary, a
representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant the provisions·
of subsection (a) for the purpose of aiding such inspection and to
participate in pre-or post-inspection conferences held at the mine.

30

u.s.c. § 813(f).
2

My colleagues engage in an extensive discussion of why the inspector was not justified

in denying SCP the opportunity to accompany him. Slip op. at 11-14, 18. Because it is not
relevant to my analysis, I do not address those arguments.
31 FMSHRC 841

The Secretary's evidence regarding the health and safety hazards at issue here was
obtained during the course of a valid inspection. The inspector's right to enter and inspect the
mine flows from section 103(a), which provides in pertinent part:
Authorized representatives of the Secretary ... shall·make
frequent inspections and investigations in coal·or other mines each
year for the purpose of ... (4) determining whether thete is
compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this title or other
requirements of this Act.... For the purpose of making any
inspection or investigation tinder this Act, the Secretary ... with
. respectto fulfilling his responsibilities under this Act, ... shall
·have a right of entry to, upon, or through any coal mine.
30 U.S.C. § 813(a).
Despite the mandatory language of the walkaround provision ("shall be given an ·
opportunity"), an inspectQr' s failure to provide an opportunity to accompany him does not curtail
the inspector's right to enter and inspect the mine. There is no language in section 103(a) that
makes the inspector's right to enterthe mine, orto conduct an inspection and cite conditions that
violate mandatory standards, contingent upon the inspector's compliance with the walkaround
provision under section l 03(f). · Indeed Congress made that fact clear when it stated:
"Compliance with this subsection [ 103(f)] shall not be a jurisdictional prerequisite to the
enforcement of any provision of this Act." 30 U.S.C. § 813(f).·
In contrast, evidence obtained in violation of the Fourth Amendment's protection from
unreasonable searches is information obtained by virtue of an illegal action. The failure to
comply with the Fourth Amendment's probable cause or warrant requirement necessarily makes
the ensuing search illegal and unreasonable. When a United States Marshal invades a house
without a warrant, he acts without the sanction oflaw. Weeks v. United States, 232 U.S; 383
(1914). If the Marshal obtains evidence of a crime, that evidence has been obtained at the
expense of the suspect's Fourth Amendment rights. Had that Marshal complied with the
Constitution's requirements, the Marshal would not have been able to enter the house and would
not have obtained the evidence.
This is not the case with MSHA inspections, even ones that fail to comply with the
walkaround right. Despite his refusal to letthe mine owner accompany him, Inspector Phillips
was acting within the sanction of the law when he conducted his inspection. Section 103(a)
authorized his entry upon and his inspection of the mine. Moreover, unlike the U.S. Marshal
who fails to comply with the Constitution's requirements, Inspector Phillip's compliance with
section 103(f) would not have restricted his ability to enter the mine, nor would it have limited
his inspection in any way. His compliance with section 103(f), in other words, would have
resulted in the same inspection and would have allowed him to view the same conditions that led

31 FMSHRC 842

to the citations and order at issue here. Thus, contrary to my colleagues' claim, the evidence
relied on by the Secretary is not properly characterized as evidence obtamed by virtue of an
"illegal action," or "in violation of a statutory mandate." Slip op. at 15. Because the evidence
here was obtained as a result. of the inspector conducting a valid, legal inspection authorized by ·
section 103(a), we do not face the issue confronting the courts in Fourth Amendment cases:
whereby to admit the evidence would be to sanction the use of illegally obtaine<i information
against the individual whose rights have been violated. United States v. Leon, 468 U.S. 897, 928
(1984) (Brennan, J., dissenting). Some Supreme Court Justices have described such action as
jeopardizing the integrity of the courts themselves. Id. at 933; 468 U.S. at 976-78 (Stevens, J.,
·
·
·
·
concurring and dissenting).
However, even ifthe Commission need not be concerned that admitting the evidence .. ·
obtained as a result of Inspector Phillip's inspection would make it complicit in an illegal act,
my colleagues point out that policy considerations favor an exclusionary rule as a deterrence of
official misconduct. I question whether the deterrence rationale is even relevant here. Inspec.tor
Phillips' refusal to allow Mr. Stone to accompany Jilin does not appear to be. an example of .·
official misconduct. Rather, it appears that the inspector was acting according to what he .
believed the law required. Before inspecting the mine's physical plant, Inspector Phillips asked
Mr. Stone about the training of the miners working there. When Phillips learned that neither
Mr. Stone nor SCP's other two miners had received the 24 hours of training MSHA requires of
new miners under 30 C.F.R §46.S(a), Phillips issued a withdrawal order, pursuant to section .
104(g) of the Mine Act, 30 U.S.C. § 814(g)(l). The Mine Act requires that such order be issued
when the inspector determines that a miner has not received the requisite training. The miner is
considered to be a hazard to himself and to others and the statute requires the immediate
withdrawal of the miner. Once withdrawn, the miner is "prohibited from enterillg such mine
until an authoriz¢ representative of the Secretary. determines that such .miner has received the
training required by section 115 of this Act." Id. As the Supreme CoUrt has noted, the
deterrence factor is not appropriately applied in sihiations where the government official had a·
good faith reasonable belief that he or she was acting in accordance with the law. Leon, 468 U.S.
at 919. Given the prohibitory language of section 104(g), it appears quite likely that Inspector
Phillips considered he had no choice but to refuse Mr. Stone's request that he be allowed to
remain at the mine and accompany the inspector.
.

;

.

.

Adopting a policy designed to deter official mis<;onduct implies that the officials in
question have an incentive to skirt the law's requirements. In Fourth Amendment cases, that
incentive is obvious. Skirting the Coq.stitution's requirements allows the police to get evidence
they would not otherwise have obtained. As discussed above, that is not the situation under the
Mine Act. Avoiding the walkaround requirement of section .J03(f) does not provide the MSHA
inspector with any greater access to in.formation regarding health ~d safety violations. In fact, it
would be more appropriate to say that the. inspector .is deprived of information: the information
that would have been supplied to him by the representative. of the owner or the representative of
the miner who should have been allowed to accompany him.

31.FMSHRC 843

Under the procedure proposed by my colleagues Cohen and Young, prior to excluding
any evidence, the judge should determine what prejudice, if any, resulted from the inspector's
violation of section 103(f). As my colleagues note, slip op. at 15, the Occupational Safety and
Health Review Commission ("OSHRC") follows a policy whereby evidence obtained in
violation of an employer's walkaround right may be excluded when the employer can
demonstrate prejudice in the preparation or presentation of its defense. It is worth noting that the
Occupational Safety and Health Act's walkaround right, 29 U.S.C. § 657(e), does notinclude the
admonition contained in the last sentence of section 103(f), to wit: that "[c]ompliance with this
subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this
Act." It is also worth noting that OSHRC has adopted the good faith exception to the
exclusionary rule. See Sanders Lead Co., 15 O.S.H. Cas. 1640 (May 1992) (explicitly adopting
the good faith exception to the exclusionary rule).
SCP has not alleged any prejudice that resulted from Inspector Phillip's refusal to allow.
its owner, Mr. Stone, the opportunity to accompanyhim. 3 Indeed in his letter to Judge Feldman,
Mr. Stone rebuts the allegations contained in the citations, accuses the inspector of"lying on and·
about the tickets" and assures the judge he "look[s] forward to proving this in court." SCP Show
Cause Reply at 3.
Chairman Duffy has not advocated for an exclusionary rule but would allow the judge to
"take into account an improper denial of walkaround rights" when that denial "may have
prevented the operator from presenting probative evidence in support of its contest." Slip op. at
19. For the same reason that I believe an exclusionary rule is inappropriate, I believe it would be
improper for the judge to take the walkaround denial into account in deciding whether the
Secretary established a violation. · Moreover, with regard to determining the appropriate penalty,
the statute is explicit as to what factors the Commission should considet.4 The inspeetor's failure
to afford the operator the opportunity to accompany him or her on the inspection is not one of
them.

3

Indeed, as Commissioners Cohen and Young acknowledge (slip op. at 17 n.18), none of
the OSHA cases cited by him involve an employer who could establiSh prejudice.
4.

In assessing civil monetary penalties, the Commission shall
consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on
the operator's ability to continue in blisiness, the gravity of the
violation,·and the demonstrated good·faith of the person charged in
achieving rapid compliance after notification of a violation.

30 u.s.c. § 820(i).
31 FMSHRC 844

For the foregoing reasons, I would vacate the judge's dismissal order and remand the case
to him for further proceedings.

31 FMSHRC 845

Distribution:
Pat Stone
SCP Investments, LLC
P.O. Box 82
Crab Orchard, TN 3 7723
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 846 ·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
:,·

.

'

'

.

6(11 NEW.JERSEY AVENUE, NW .
SUITE9500
WASHINGTON, DC 20001

August 11, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DocketNo. KENT 2008-1363
A.C. No. 15-17651-150064

v.
ROCKHOUSE ENERGY M1NING CO.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
·.. This matter arises wider the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 29, 2008, the Commission received from Rockhouse
Energy Mining Co. ("Rockhouse") a motion by counsel seeking to reopen a penalty assessment · ··
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act; an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 ·days after receiving the proposed
penalty assessment. If the operator:fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S;C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim WalterRes.,Inc., 15 FMSHRC 782; 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Prdcedlire"); JWR, 15 FMSHRC at 787. We have also obser\Ted that default is a· ·
harsh remedy and that, if the defaulting party cati make a showing of good cause for a failure to
timely respond, the case may be reopened and aj>propriate proceedings on the merits permitted.·
See Coal Prep. Servs., Inc., 17FMSHRC1529, 1530 (Sept.1995).
31FMSHRC847

This case involves· an assessment, issued by MSHA on May 8, 2008, which includes a
large number of citations and orders. The operator represents that on May 16, 2008, its Safety
Director reviewed the proposed penalty assessment and marked the assessments which the
company intended to contest. The operator attached to its motion a copy of MSHA Form 1000179, indicating that it intended to contest 15 assessments totaling $229,499.00. The operator
further contends that the Safety Director gave the Form 1000-179 to his administrative assistant
for faxing to the company's attorneys in order that the marked assessments be contested. The
affidavit of the Safety Director states that he did not learn that the assessments were delinquent
until on or about July 20, 2008, when the company's attorneys so informed him .. The affidavit. of
the administrative assistant states that she does not have any recollection of receiving the Form
1000-179 from the Safety Director at any time. However, after the Safety Director learned of the
delinquencies and inquired about them, the administrative assistant discovered a copy of the
Form 1000-179 in the appropriate file, but there was no accompanying fax transmission sheet
indicating that the form had ever been sent to the operator's attorneys.
In addition to the $229,499.00 which is delinquent in this case, the Form 1000-J 79
indicates that as of May 8, 2008, the operator was also delinquent in four other assessment cases,
with total penalties of$61,680.79.
We further note that in Docket No. KENT 2007-280, this same operator sought reopening
of a final assessment in a situation where it faxed part, but not all, of the pages included the
proposed assessment to its attorneys for submission of a contest to MSHA. Consequently, the
operator was obliged to request reopening of the assessment.s contained on the page it failed to
fax to its attorneys; .These are the same type of internal system failures which.occurred in the
present case.

m

The operator has not indicated that it has any kind of back-up or tracking system by
which it can determine whether faxes or other communications intended to be sent to its ·
attorneys for transmittal of assessment contests to MSHA have actually been received and
processed. If such a system had been inplace in this case, the· Safety Director would have
learned, within 30 days of receipt of the proposed assessments, that the notice of contest had not
been sent to MSHA. Thus, the Safety Director would have been able to file a timely contest even
despite the mis-communication with the administrative assistant.
.The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1

1

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA
- Attorneys Regarcfuig Matters Involving Massey Energy Company Subsidiaries" dated
September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter
in which any Massey Energy subsidiary failed to timely return MSHA Form I 000-179 or
inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a
31 FMSHRC 848

Having reviewed Rockhouse' s request, in the interests of justice, we hereby remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Rockhouse' s failure to contest the penalty proposals and whether relief from the final order
should be granted. If it is determined that such reliefis appropriate, this case shall proceed
pursuant to the Mme Act and the Commission's Procedural Rules, 29 C.F.R Part 2700.
·In determirung whether to reopen this case, the Chief Administrative Law Judge should
consider whether the operator exercised due diligence in its efforts to. timely contest ·tlie penalty .
asse8sments, p8rtictt1arly in light of the size of the proposed penalty, the existence of other
·
substantial delinquencies, the operator's histOry of similar prior tlntimely contests, and the lack of
a back-up or tracking_ system.

Robert F. Cohen, Jr., Commissioner

reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of
a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a
reasonable time. Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has no bearing on our
determination on the merits of the operator's proffered excuse.
31 F:MSHRC 849

Chairriian
. . Duffy, ·dissenting:
.
I c~ot agree with the majority's remand instructions in this case. Section ll3(b)(i) of
the Mine. Act states that the Commission's judges are to "carry out the functions of the
Commission." 30 U.S.C. § 823(b)(2). The terms of the remand would have the Chief·
Administrative Law Judge or his designee conduct a proceeding that would inquire into, among
other things, the operator's "due diligence in its efforts to timely contest the penalty assessments"
at issue here, ''the existence of other substantial delinquencies" by the operator in paying penalty ·
assessments, and the operator's "lack of a back-up or traCking system." While I am not . . .
unsympathetic to what motivates the majority in this case - an operator whose internal handling
of proposed penalty assessments appears less than satisfactory - I simply carinot see how the
policing the Commission is undertaking in this case is a function of this Commission un.der the
Mine Act. In addition, the question of whether the Commission, in ruling on motions to reopen,
should consider the type of evidence the majority's remand order is designed to elicit is better
addressed as part of the Cominission' s presently pending rulemaking on such motions, rather
than within
illdividual order issued among the many the Commission is issuing these days.

an

The Secretary of Labor, whd has an even greater interest than the Commission in having
this case efficiently processed, is not opposing reopening. Because I do not believe the
objectives of the Mine Act are furthered by the proceeding envisioned by the majority, I would
instead grant reopening and have the Secretary file a petition for assessment of penalty within 45
days. See 29 C.F.R. § 2700.28.

31 FMSHRC 850

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
Sarah Ghiz Korwan, Esq:
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept Of Labor
1100 WilsonBlvd:, 25th·Floor ·
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.w~, Suite 9500 ·
Wa8hington; D.C. 20001.;2021

31 FMSHRC 851

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-1032
A.C. No. 15-18161-179573

v.
PANZER COAL INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 7, 2009, the Commission r(:ceived from Panzer Coal
Inc. ("Panzer") a letter seeking to reopen a penalty assessment that had become a<final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes. to contest a .proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment.
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC852

In his letter s.eeking reopening of Proposed Assessment No. 000179573, the vice
president/treasurer of Panzer explained that he failed to contest the proposed assessment in a
timely manner due to the birth of his child and the circumstances surrounding that occasion. The··
operator promptly sought re-opening of the assessment after realizing its mistake. The Secretary
·
states that she does not oppose the reopening of the proposed penalty assessment.
Having reviewed Panzer,s request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for fiirtlier
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 CF.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
·

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 853

Distribution:
John Graves
Panzer Coal Inc.
223 Belleaire Dr.
Knoxville, TN 37934
·'

.·.

W. Christian Schumatin, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative' Law Judge Robert J. Lesnick
Commission
Federal Mme Safety
. & Health Review
.
.
601 New JerseyAvenue, N.W., Suite 9500
Washington, D.C. 20001-2021
.

31 FMSHRC 854

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, f4W .·
SUITE9500
WASHINGTON, DC 20001

August 13, 2009
SECRETARY OF LABOR, ·
MINE SAFETY AND HEALIB
ADMJNISTRATION (MSHA)
Docket No. SE .2009.-551-M
A;C. No. 22':'00582-J80213 VIOO

v.

CONSOLIDATED CONTAINERCO., LP

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. {2006) ("Mine Act"). On May 26, 2009, the Commission received from
ConsoP.dated Container Co1Ilpany, LP ("CCC") a motion made by counsel seeking to reopen a
penalty a5sessment Uiathad become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a.final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC .782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders; the.Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
3lFMSHRC 855

.
for a failure to funety respond, the case may be reopened' and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC i529, 1530 (Sept. 1995).
.

The record indicates that the operator was not familiar with Mine Act procedures and
inadvertently sent the form contesting the proposed penalties two days late. The record further
indicates that prior to receiving the proposed assessment, the operator had contacted MSHA to
attempt to contest the citations. The Secretary states that she does not oppose reopening the
proposed penalty assessment.
Having reviewed CCC's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
·proceedings pursuant to the Mine Act and the Commission's Procedilral Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Micha

Robert F. Cohen, Jr~, Commissioner

31 FMSHRC 856

Distribution:
Bradford T. Hammock, Esq.
Jackson Lewis, LLP
10701 Parkridge Blvd., Suite 300
Reston, VA 20191
W. Christian Schumann, ·Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilscin Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
.

31FMSHRC857

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW.
SUITE9500
WASHINGTON, DC 20001

August 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-552-M
A.C. No. 01-00003-170058

CHEMICAL LIME COMPANY
OF ALABAMA

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 28, 2009, the Commission received from Chemical
Lime Company of Alabama ("Chemical Lime") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 3, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000170058 to Chemical Lime, proposing civil
penalties for Citation Nos. 6083927 and 6083928. Chemical Lime states that it indicated on the
proposed assessment that it was contesting Citation No. 6083928 and forwarded the proposed
assessment to its counsel by electronic mail in December 2008 for submission to MSHA. The
operator states that its counsel did not receive the e-mail. In March 2009, Chemical Lime
received a delinquency notice from MSHA regarding the penalty assessment. Chemical Lime
and its counsel investigated the matter, but the investigation did not reveal the reason for the
delivery failure.

31 FMSHRC 858

The Secretary states that she does not oppose the reopening of the proposed penalt)r
.assessment.
We have held that in appropriate· circumstances, we possessjurisdiction to reopen
uncontested assessments that have become final Commission orders ilnder section 105(a). Jim··
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure~'); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC859

Having reviewed Chemical Lime's request and the Secretary's response, in the interests
of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for ·
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shallfile a petition for assessment
ofpenaltywithin45 days of the date of.this order. See 29 C.F.R~ § 2700.28.

'

'~
"

.

~·

-

\

l

.

\

....

Mi

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 860

Distribution:
Jeremy Tucker, Esq.
Alston & Bird, LLP
One Atlantic Ctr.
1201 West Peachtree St.
Atlanta, GA 30309-3424
W. Christian Schumann, Esq.
Office of the SoliCitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission .
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 861

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 13, 2009
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-396-M
A.C. No. 26-02512-154038

v.
NEWMONT USA LlMITED

BEFORE: Duffy, Chainnan; Jordan, Young, and Cohen, .Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, JO U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 13, 2009, the Commission received a.letter from
Newmont USA Limited ("Newmont") seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 18, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Assessment No. 000154038 to Newmont, proposing civil penalties
for 48 citations. Newmont states that on April 11, 2008, before it received the proposed
assessment, it contested two of the citations, Citation Nos. 6437773 and 6437775. It asserts that
it contested the proposed penalties of 15 of the citations listed on Proposed Assessment No.
000154038, and that MSHA received the contest on August 4, 2008 (which, according to the
Secretary, was sent beyond the statutory deadline for mailing the contest). The operator further
explains that it paid the proposed penalties for the remaining 33 citations, and that payment was
received by MSHA on August 26, 2008. The operator submits that it received a delinquency
notice from MSHA dated September 11, 2008, which included Citation Nos. 6437773 and

31 FMSHRC 862

6437775. 1 Newmont contends that the delinquencynotice created confusion as to the amount
due and the true status of the cases filed with the Commission.
The Secretary opposes reopening the proposed assessment. She states that the operator
fails to explain why, after it was informed of the delinquency, it took as long as it did to request
reopening. The Secretary explains that the proposed assessment became a final order on July 23,
2008. The operator mailed its contest of the proposed penalties on July 29, 2008 .. She states that .
MSHA sent Newmont a notice on August 7, 2008, and again on September 11, 2008, stating that
payment of the penalties was delinquent. The Secretary emphasizes that the Commission
received Newmont's request to reopen approximately five months after the first notice and that
the operator did not explain the delay.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F;R. § 2700~l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
In considering whether an operator has unreasonably delayed in filing a motion to reopen
a final Commission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31FMSHRC8, 11(Jan.2009). Although the Secretary raised the
issue that Newmont failed to explain why, after it was informed of the delinquency, it took as
long as it did to request reopening, the operator did not file a reply providing an explanation.2

1

Even though the operator filed contests of Citation Nos. 6437773 and 6437775, it must.
also separately contest t:he proposed penalties for those citations. See 29 C.F.R. § 2700.21.
Because the operator failed to timely contest those penalties, they were deemed final
Commission orders and appropriate for collection efforts. See 29 C.F.R § 2700.27.
2

.. An operator's failure to respond. to a delinquency notice may constitute grounds for .
dismissal with prejudice. See Left Fork, 31 FMSHRC at 10-11. Accordingly, an operator who
does not explain why; after it was informed of a delinquency, it took as long as it did to request
reopening, does so at its peril. We encourage parties seeking reopening to provide further.
information.in response to pertinent questions raised in the Secretary's response. See, e.g.,
Climax Molybdenum Co., 30 FMSHRC 439, 440 n.l (June 2008).

31 FMSHRC 863

HavingreviewedNewmont's request and the Secretary's response, we conclude that
Newmont has failed to provide an explanation for its failure to timely contest Proposed
Assessment No. 000154038. Newmont's failure to explain the delay in contesting the proposed
penalties and in responding to the delinquency notices does not provide the Commission with an
adequate basis to reopen. See, e.g., Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009).
Accordingly, we deny without prejudice Newmont's request tO reopen. The words ''without
prejudice" mean Newmont may submit another request to reopen so that it can contest the
citations and penalty assessments.3

Robert F. Cohen, Jr., Commissioner

3

If Newmont submits another request to reopen, it must establish good. cause for not
contesting the citations and proposed penalties within 30 days·from the date it received the
proposed penalty assessments from MSHA. Under Rule 60(h) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise or excusable fault on the part of the party seeking relief.
Newmont should include a full description of the facts supporting its claim of"good cause,"
including how the mistake or other problem prevented Newmont from responding within the
time limits provided in the Mine Act, as part of its request to reopen the case. Newmont should.
also explain its delay in responding to the delinquency notices. In addition, Newmont should
submit copies of supporting documents with its request to reopen the case.
31 FMSHRC 864

Distribution
Richard Tucker
Compliance & Safety
Newmont Mining Corporation
P.0.Box669
Carlin, NV 89822-0669
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 865

Distribution:
Bradford T. Hammoc~ Esq.
Jackson Lewis, LLP
10701 Parkridge Blvd., Suite 300
Reston, VA 20191
W. Christian Schumarin, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 866

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500 •
WASHINGTON; DC 20001

August 13, 2009
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-961-M
A.C. No. 31-00718.;151259 MNK ·

v.
MYRICK CONSTRUCTION
COMPANY, INC.

BEFORE: Dillfy, Chairman·; Jordan, Y o:ung, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C
§ 801 et seq. (2006) ("Mine Act"). On August 15, 2008, the Commission received from Myrick·
Construction Company, Inc. ("Myrick") a motion made by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.KC. § 815(a):
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the ,operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure_under which, for example, a party could be entitled to relief
from a final order ofthe Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700:l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep; Se7Vs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 867

On May 20, 2008~ the Department of Labor's Mine Safety and HealthAdmitristration
(''MSHA") issued Proposed Penalty Assessment No. 000151259. Myrick paid the penalty in a
timely fashion. In July 2008, Myrick learned that MSHA was initiating a special investigation
against two of its employees under section 1 lO(c).ofthe Mine Act, 30 U.S.C. § 820(c), based on
allegations contained in the penalty assessment. Myrick seeks to reopen the penalty assessment
and consolidate it with the section 110(c) proceedings.· It asserts that it was not aware that
payment of the penalty could be construed as an admission of a violation and used as evidence
against its personnel in subsequent proceedings.
The Secretary opposes reopening and submits that under the doctrine of collateral
estoppel, an operator's failure to contest a proposed penalty does not estop agents of the operator
from litigating any aspect of the underlying violation. The Secretary states that she "traditionally
has not argued that an operator's payment of or failure to contest a proposed assessment estop.s
agents of the operator from litigating any aspect of the underlying violation in a subsequent .
section 110(c) proceeding, and the Secretary will not so argue if a subsequent section 110(c)
proceeding is initiated here." S. Opp'n. at 4. The Secretary all)o contends that the operator's.
professed ignorance of, and unfamiliarity with, the Mine Act is not a basis for reopemng.
Based on the Secretary's representation that, if a section 110(c) proceeding is initiated,
she will not argue that Myrick's payment of or failure to contest a proposed assessment estops
the agents of the operator from litigating any aspect of the underlying violation, the gro~ds.for'
the operator's contentions are unfounded. Accordingly, we hereby dismiss Myrick's request to
·
reopen with prejudice.

Robert F. Cohen, Jr., Commissioner
31 FMSHRC 868

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann,· Esq.
Office of the Solicitor
U.S. Department of Labor
· 1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 869

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

August 19, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-1224
A.C. No. 1S.:.18775-18276A

v.
MICHAEL DIAMOND

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On June 22, 2009, the Commission received from Michael
Diamond a motion by counsel seeking to reopen a penalty assessment against Diamond under
section 110(c) of the Mine Act, 30 U.S. C. § 820(c ), that may have become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders. Jim Walter Res., Inc., 15
FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to reopen final section
105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil
Procedure under which, for example, a party could be entitled to relief from a final order of the
Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F .R.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a

31 FMSHRC 870

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Mr. Diamond states that MSHA did not send the proposed assessment to his counse~ as
he had previously requested to MSHA. Diamond further states that he was unaware that his
counsel had not received a copy of the assessment, and that by the time he realiZedit and had
counsel return the assessment form, it was sent to MSHA one day late. The Secretary states that
she does not oppose reopening.
Having reviewed Diamond's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.FR. ·
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file apetition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 871

Distribution:
Marco M. Rajkovich, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumarin, Esq.
Office of the Solicitor
U.S. Department of Labor
1 IOO·Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety& HealthRevl.ew Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 872

FEDERAL
MINE SAFETY AND HEALTH
REVIEW COMMISSION
.
.
~

601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001 ·

August 19, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No; SE 2009-625-M ·
A.C. No. 09-00961-168437

v.
SOUTH RIDGE GRANITE QUARRY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 15, 2009, the Commission received a motion by
counsel to reopen a penalty assessment issued to South Ridge Granite Quarry ("South Ridge'')
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
South Ridge Assessment No. 000168437 on November 12, 2008, proposing a penalty for a single
citation MSHA had issued to South Ridge two months earlier. According to South Ridge,
November 12, 2008, was also the date it had held an informal conference with MSHA
representatives regarding the citation. The operator states that it consequently concluded that it
did not have to respond to the proposed assessment when it subsequently received it, nor to a
later MSHA delinquency notice it received, and that the informal conference would eventually
result in a formal hearing on the matter. South Ridge, which states that it had never before
contested a penalty assessment, did not consult with its counsel on this matter until it received a
Treasury Department notice regarding the assessment dated May 23, 2009. Counsel
31 FMSHRC 873

subsequently filed the m~tion to reopen. The Secretary of Labor does not oppose the request to
reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 874

Having reviewed South Ridge's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 1

Robert F. Cohen, Jr., Commissioner

1

We grant reopening even though South Ridge, because of its confusion about the effect
of the conference, did not move to reopen the assessment until nearly six months had passed
since the assessment had become a final order. However, operators should be aware that, in
general, a delay of such length decreases the likelihood that the Commission will look favorably
upon a request to reopen.

31 FMSHRC 875

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumarin, Esq~
Office of the· Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., z5t1t floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health.Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 876

FEDERAL MINE SAFETY AND liEALTH REVIEW COMMISSION
'::

601 NEW JERSEY AVENUE, NW.
SUITE9500
WASHINGTON, .DC 20001

August 19, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

...

.

Docket No. WEST 2009... t 003-M
A,C. No. 45-03039°'. l 76249 .

. v.
PACIFIC ROCK PRODUCTS, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006} ("Mine Act"). On June 18, 2009, the Commission received from Pacific
Rock Products, LLC (''Pacific Rock") a motion by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section I 05(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment.. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section lOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'}. In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pemritted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 877

On February 10, 2009, the Department of Labor's Mme SafetY ~d Health Administration
("MSHA") issued proposed penalty assessment No. 000176249 to Pacific Rock, for seven
citations MSHA had issued to the operator the previous month. Pacific Rock states that it
intended to contest the proposed penalties, but failed to do so as a result of "management
changes" necessitated by economic conditions. The Secretary of Labor states that she does not
oppose reopening the proposed assessment.
Having reviewed Pacific Rock's request and the Secretary's response, we conclude that
Pacific Rock has failed to provide a sufficiently detailed explanation for its failure to timely
contest the prC>posed>penaltyassessment. Pacific Rock's statement that it failed to file a timely
contest due to. "management changes'' made in its "Health and Safety Department for the Pacific
Northwest" in late 2008 does not provide the Commission with an adequate basis to justify
reopening an assessment that did not become a final order until March 19, 2009. Accordingly;
we deny without prejudice Pacific Rock's request. See, e.g., Eastern Associated Coal LLC, 30
FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).
'..:·.

~~~·
~

M

LUOrdan, C

"'·

•);._

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 878

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, ·Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220 ·
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. · 20001-2021

31 FMSHRC 879

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 19, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1016-M
A.C. No. 45-03356-179479

v.
PENNY CREEK QUARRY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of i977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 22, 2009, the Commission received from Penny
Creek Quarry, LLC ("Penny Creek") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 81S(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR."). In evaluating requests to
reopen final section 105(a} orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).

31 FMSHRC 880

Penny Creek states that it received the assessment at issue, but its bookkeeper at that time
filed it away and
stopped working at the mine without notice. Penny Creek explains that no
one else at the mine was aware of the assessment until it received a delinquency notice from ·
MSHA dated June 10, 2009. The operator states that it filed the motion immediately upon
receipt of the delinquency notice, and indicates that it wishes to contest all three penaJ.ties
proposed in the assessment. The Secretary states that she does not oppose reopening the
assessment.

then

Having reviewed Penny Creek's request and the Secretary's response~ in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700~28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 881

Distribution:
Jeffrey Hathaway, Owner
Penny Creek Quarry, LLC.
P.0.Box273
413 Penny Creek Road
Quilcene, WA 98376
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
__
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 882

FEDERAL
MINE
SAFETY AND
HEALTH REVIEW COMMISSION
.
.
·'
.

.·

.

601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 25, 2009
Docket No. KENT 2009-924
A.C. No. 15-07082-170350

SECRETARY OF LABOR,.
MINE·SAFETY AND HEALTH
ADMINISTRATION{MSHA) ·

Docket No. KENT 2009-1198
A.C. No. 15-07082-178373.

v.
FREEDOM ENERGY MINING COMPANY

Docket No. KENT 2009-1341
A.C. No. 15-07082-180991

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On April 16, June 16, and July 21, 2009, the Commission
~ceived motions by.counsel to reopen three penalty assessments issued to Freedom Energy
Mining Company (''Freedom") which may have become final orders of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Corllmission. 30 U.S.C. § 815(a).
According to Freedom, none of the assessments - No. 000170350 issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") on December 4, 2008,
No. 000178373 issued on March 5, 2009, and No. 000180991 issued on April 2, 2009-were
received by the operator at its designated address. fustead, MSHA's records show that each time

1

Pu;rsuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2009-924, KENT 2009-1198, and KENT 2009-1341, all
captioned Freedom Energy Mining Co. and involving similar procedural issues. 29 C.F .R.
§ 2700.12.
31 FMSHRC 883

Federal Express returned the packages containing.the assessments to MSHA. The Secretary
concedes that the deliveries never took place, and states that she and Freedom have agreed that
future assessments will be mailed to a Post Office·Box. The Secretary further reports that the
new arrangement is in place as of April 9, 2009.
Having reviewed Freedom's requests and the Secretary's responses, we conclude that
none of the assessments became a final order of the Commission, and thus reopening is not
necessary. Accordingly, we deny the operator's requests as moot and·remand this matter to the
Chief Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary, if she has not already done so, shall file petitions for assessment of penalty in each
docket within 45 days of the date of this order, based on the penalties Freedom indicated it
wished to contest on the forms it attached to its motions to reopen. See 29 C.F.R. § 2700.28.

Robert F. Cohen,·Jr., Commissioner

31 FMSHRC 884

Distribution:
Sarah Ghiz Korwan, Esq.
Dinsmore & ShobL LLP
P. O. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA . 22209-2296
lVfyraJames,Chief
Office of Civil Penalty Compliance, lVISHA
U.S. Dept. Of Labor
11 oo Wilson Blvd., 25th FIOor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal lVfine Safety &Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 Fl\1SHRC885

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 25, 2009
Docket No. WEVA 2008-879
A.C. No. 46-09020-123653

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

Docket No. WEVA 2008-880
A.C. No. 46-09020-130296

v.
DOUBLE BONUS COAL COMPANY,

Docket No. WEVA 2008~1354
A.C. No. 46-09020-148893
Docket No. WEVA 2008-1355
A.C. No. 46-09020-145248
Docket No. WEVA 2008-1356
A.C. No. 46-09062-147434

DYNAMIC ENERGY, INC.,

Docket No. WEVA 2008-1448
A.C. No. 46-09062-144939.
FRONTIER COAL COMPANY,

Docket No. WEVA 2008-1357 .
A.C. No. 46-09227-145258

BLUESTONE COAL CORPORATION,

Docket No. WEVA 2008-1358
A.C. No. 46-08684-146783
Docket No. WEVA2008-1661
A.C. No. 46-08684-150175

JUSTICE HIGHWALL MINING, INC.,

Docket No. WEVA 2008-1359
A.C. No. 46-09123-147164
Docket No. WEVA 2009-727
A.C. No. 46-09031-162833

and
Docket No. WEVA 2008-1563
A.C. No. 46-08884-148891

PAY CAR MINING, INC.

Docket No. WEVA 2009-812
A.C. No. 46-08884-170006
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners

31 FMSHRC 886

ORDER
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). In each of the 13 captioned cases, the Commission received a
request to reopen a penalty assessment that had become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U:.S.C. § 815(a). Under section 105(a) of the Mine Act, an
operator who wishes to contest a proposed penalty from the Department of Labor's Mine Safety
and Health Administration (''MSHA") must notify the Secretary of Labor no later than 30 days.
after receiving ·the proposed penajty assessment. If the operator fails to notify the Secretary; the .
proposed penalty assessment is deem~d a final ord~ of the Commission. Id.
.

.

;

In 11 of the 12 cases in which she filed responses,.the Secretary originally did not oppose
reopening of the assessments. While separate orders in those 12 cases were being finalized by
the Commission, in the thirteenth case; Pay CarMintng, Inc., Do.cket No. WEVA 2009-812
("Pay Car Ir'), the Secretary, in a response,dated March2, 2009, opposed reopeniJ.ig the case.
She requested that if the Commission voted to grant relief, it order the oper~tors to prepay th~ ·
penalties. She also indicated that she planned to file supplemental responses in the l l other
cases in which she had not Qpposed reopening. 'f4e Secretary did so shortly thereafter, filing a
series of supplemental responses opposing those requests for relief on the same or similar
grounds. as ,stated in her response in Docket No. WEVA 2009-812. 1
.

.

.

'

.

..

.

.

'

Because the Secretary's filings addressed the interrelationship between the operators in
the cases. and raised very serious issues regarding the operators' requests to reopen when.those
requests are considered together,2 the Commissioµ consolidated all 13 cases and issued a .

1

In Justice Highwall Mining, Inc., Docket No. WEVA 2009-727, the Secretary opposed
reopening immediately in response to the motion to reopen, .and did not file a supplemental
response.
,'

2

Jn her March 2, 2009, submission, .the Secreta.rY ~tated that she
opposes reopening in this case and the other cases because it has
become clear over time that the operators in all of the cases are
controlled by the same individual, James Justice; that they all use
the same ineffective (llld unreliable system by which to process
penalty assessments; that they all offer the. same unpersuasive and
unmeritorious excuses for failing to ·contest penalty. assessm<;mts in
a timely manner; and that they all exhibit the same attitude toward
penalty assessments - an attitude of carelessness, indifference, and
outright evasion.

Sec'y of Labor's Opposition to Request to Reopen Penalty Assessment and Request for
Prepayment ofPenalties 1,1t 2 (Docket No. WEVA 2009-812) (hereinafter "S.Pay Car1IOpp'n").

31 FMSHRC 887

schedule by which the parties could submit further evidence and argument on the issues raised by
the Secretary's filings. 31 FMSHRC 339 (Mar. 2009). Consequently, in response to the
Commission's order, the Secretary filed a response affirming that shewas opposing all 13
requests to reopen.
The operators' reply submissions took the form of a response and five answers to the
Secretary's opposition filings. The six filings by the operators covered (1) Docket No. WEVA
2009-727 (Mar. 5, 2009); (2) Docket No. WEVA2008-1355 (Mar. 23, 2009); (3) Docket No.
WEVA 2009-812 (Miir.- 27, 2009); {4)Docket Nos. WEVA 2008-1356, WEVA 2008-1357,
WEVA 2008-1358, arid WEVA2008-1359 {Mar; 27, 2009); (5) Docket Nos. WEVA 2008-1354;
WEVA 2008-1448, WEVA 2008-1563, and WEVA 2008-1661 (Mar. 31, 2009); and (6) Docket
Nos. WEVA 2008-879 and WEVA 2008-"880 {Apr. 2, 2009).
The Secretary then filed a consolidated surreply to the operators' submissions, as
permitted by the Commission's scheduling order. Finally, in a Notice dated May 22, 2009, the
Secretary informed the Commission that the,operators had submitted a check to MSHA for
$649,740.14 to be deposited into an escrow account. That amount represented the full amount.of
the initial penalties at issue in the cases, plus interest, fees, and costs through May 14, 2009.
The Commission has considered the extensive submissions of the operators and the
Secretary. For the reasons set forth below in their separate opinion, Chairman Duffy and
Commissioner Young would reopen all 13 cases and remand the individual cases to the Chief
Administrative Law Judge for further proceedings. Commissioners Jordan and 'Cohen, for the
reasons set below in their separate opinion, would reopen five of the cases~ :and deny with
prejudice the requests to reopen seven other cases. In one case, they would grant relief in part
·.
and deny in part.
Consequently, Docket Nos. WEVA 2008-1356, WEVA 2008 ... 1357, WEVA 2008-1358,
WEVA 2008-1359, WEVA 2009-812, and the penalty associated with Citation No. 7259169 in
Docket No. WEVA 2008-1355 are hereby reopened and separately remanded to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order in
each of the six cases. See 29 C.F.R. § 2700.28.
Furthermore, the effect of the split decision of the Commissioners as to the other requests
to reopen is that the requests in Docket Nos. WEVA 2008-879, WEVA 2008'-880, WEVA 20081354, WEVA2008•1448, WEVA2008-1661, WEVA2008-1563, WEVA2009-727,andDocket
No. WEVA 2008-1355 {except for the penalty associated with Citation No. 7259169) are all
denied. 3

In deciding the motion to reopen in Docket No. WEVA 2008-1355, the Commission
also considered pleadings that were filed in Double Bonus Coal Co., Docket No~ WEVA 2008..:
3

31 FMSHRC 888

Opinion of Commissioner Duffy and Commissioner Young:
We joined with our colleagues in consolidating these cases and taking further
submissions from the parties because of the significant issues the Secretary raised in her March 2,
2009 filing when she reversed course in many of these cases and began opposing reopening. We
also believe; similar to
colleagues, that if the merits of each of the cases were to be
considered, the operators' grounds for reopening may be better in some cases than in others.

our

Howe~er, in the interest of effi.Ciently disposing of these cases, some of which were filed·
over a year ago, we would reopen all of the cases on the ground that the operators' prepayment ~f
the penalties, phis interest, fees, and costs, reasonably satisfies the concerns the Secretary
expressed ill her March 2 filing. Therein, she explained that the enormity of the total amount of
the delinquent penalty· payments compromises the deterrent effect of civil penalties at all of the
operators' mines. S. Pay Car II Opp 'n at 11. She further argued tha~ with regard to the failure
to contest the assessments on a timely basis,. ''the operators' excuses reveal a carelessness .that
warrants prepayment ofthe fulrpenalty amount if the motions are granted." Id. at 1~17.
Consequently, the Secretary took the position that "if the Commission grants the operators'
requests, the Seeretary requests that the Commission do so conditioned upon the operators'
payment of the full penalty amount, subject to refund by MSHA to the extent that Respondent
prevails on the.merits of the citations and/or penalties~" Id. at 1-2; see also id. at 20.

Given that the operators paid the amounts atissue to MSHA (which will hold the money
in escrow in an account that, presumably, will accrue interest), even before the Commission ruled
on their pending motioris to reopen, we would grant the requests to reopen with respect to all 13
assessments at issue. We do so without ruling on whether the Corllmission would have the
authority to require prepayment of penalties, in these or ani other cases, and without reaching the .
merits of
of the requests' fo reopen.
.
.

any

issioner

1596. That docket was administratively closed after it was learned that the request to reopen in it
was duplicative of part of Docket No. WEVA 2008-1355. All documents in Double Bonus Coal
Co., Docket No. WEVA 2008-1596, will be transferred into Docket No. WEVA 2008-1355.
31 FMSHRC 889

Separate opinion of Chairman Jordan and Commissioner Cohen:
I.

Introduction

Between April 2008 and February 2009, six mine operators controlled by a single
individual, J runes C. Justice, filed a total of fifteen motions seeking relief from final Coinmission
orders. 1 The thirteen matters before us in this proceeding2 involve deliD.quent penalties totaling
over half a million dollars. Sec'y of Labor's Opposition to Request to Reopen Penalty
Assessment and Request for Prepayment of Penalties at 11, Pay Car Mining, Inc., Dockd No.
WEVA 2009-812 {hereinafter "S. Pay Car II Opp'n"). 3 For the reasons set fort.h below, 1n seven
dockets, we would deny relief. We would grant relief in five of the other dockets and order the.
Secretary to proceed with the case and file her penalty petition. In the remaining docket, we
would grant relief in part and deny in part.
·
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed ..
penalty assessment. If the operator fails to notify the Secretary, the proposed pemµty assessment
is deemed a final order oftheCommission. 30 U.S.C. § 815(a).
· · ··
·
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders uncler section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commissi<;>n has found guidance in ~ule 60(b) of the
Federal Rules of Civil Procedure under which, for exrunple, a party could be entitled to relief .·
from a final order of the Commission on the basis of inadvertence or mistake. .See 29 ·C.F.R.· .
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far a5 practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to

1

In its Order of March 13, 2009, the Commission consolidated 13 of these cases.

2

The Commission previously issued an order in Double Bonus Coal Co., Docket Nos.
WEVA 2009-810 and WEVA 2009-811, regarding the two other motions. 31 FMSHRC 358
(Mar. 2009). In that case, the Commission concluded that the proposed assessments at issue
never becrune final orders of the Commission because they were never delivered to the operator.
Id. at 360. The Commission denied the motions as moot, remanded the matters to the Chief
Administrative Law Judge for further proceedings, and ordered the Secretary to file petitions for
assessment of penalty. Id.
3

In this March 2, 2009 submission, the. Secretary opposed relief in all of the cases at

issue here, explaining the relationships between the operators, their mail:-handling systems, the
excuses offered in their motions, and their history of late penalty contests.
31 FMSHRC 890

timely respond, the case may be reopened cmd appropriat~ proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Commission agreed to consolidate these proceedings because during our review of
the operators, motions, we found that a disturbing pattern of carelessness had emerged in many
of these proceedings, and we believed it would be beneficial to review all of these requests to
reopen as a group. In so doing, we found a series of unpersuasive excuses for late-filed penalty
assessments, and ~vidence of unreliable systems used by these operators when processing penalty
assessments. We were also concerned that in many instances, the operators sought relief from
these final orders only after receiving delinquency letters from the Mine Safety and Health
Administration ("MSHA") or after being put on notice of enhanced enforcement efforts.
Moreover, a global approach to these motions (in addition to scrutiny of each individual
case) is particularly helpful because, except for Double Bonus, each operator's point of contact
for MSHA is the same in terms of the operator's address and contact person. The same
individual, Patrick M. Graham,4 was involved in most of the operators' responses to the
assessments, including the responses of Double Bonus. S. Pay Carll Opp'n at. 8-11. Also in
many of the cases, the operators cited similar reasons for failing to timely contest penalty
assessments. These were giounded in a faulty mail processing system. Id. at 12-17. For
example, after proposed assessments .issued in_ 2007 were mishandled, the operators claimed to
- have initiated a new system for timely contesting assessments in February 2008. Double Bonus, .
Docket No. WEVA 2008-1355, Mot. to Reopen at 2. The oper~tors aclmowledged th~t this
system contained "some faults," and so a new syste~ was established in June 2008. Id. This
system also failed work properly and so, as of January 2009, it was decided to "stamp in"
assessment sheets "to avoid any mistakes." Pay Car I/Mot. to Reopen at 2.
·

to

Reviewing these cases as a group also reveals the repetitive nature of the excuses offered
for the late filings. The first two cases, filed in April 2008,5 contained identical excuses for latefiled contests of assessments that were proposed three months apart. Double Bonus Coal Co.,
Docket Nos. WEVA 2008-879 and WEVA 2008-880.. Three other cases, filed by three ~fferent
operators and involving as~ssments issued in March, _April and May of 2008 contained identical
excuses. Dynamic Energy, Inc., Docket No. WEVA 2008-1448, Pay Car Mining, Inc.~ Docket
No. WEVA 2008-1563 (..Pay Carr'), and Bluestone Coal Corp., Docket No. WEVA 20081661, Mots. to Reopen.

In an affidavit attach~d to soI11e of the operators' responses, Mr. Graham identifies
himself as the Director and General Manager of Safety/Human Resources for the '~James C.
Justice Companies."
4

5

Double Bon:us first attempted to reopen these assessment cases in February 2008, but
sent the letter to MSHA rather than the Commission. The reopening request was sent to the
··
.
Commission in April 2008.
31 FMSHRC.891

Furthermore, according to the Secretary, as ofMarch2009, the total delinquencies for·
mines controlled by Mr. Justice equaled $870,843. S. Pay Car II Opp'n at 11. Of that amount,
70% was the subject of motions seeking relief before the Commission ($608,182) and 30%
remained unpaid ($262,661). Id. We are deeply troubled by this significant amount ofunpaid
penalties, which contravenes Congress' intent that
the purpose of a civil penalty is to induce those officials
responsible for the operation of a mine to comply with the Act and
its standards.

. . . To be effective and to induce compliance, civil
penalties, once proposed, must be assessed and collected with
reasonable promptness and efficiency.
S. Rep. No. 95-181, at 41, 43 (1977}, reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legi.slative History of the Federal Mine Safety and Health Act of 1977, at 62.9, 631
( 1978) ( "Legis. Hist. "). Senator Williams, the sponsor of the Mine Act, empha8ized that the
civil penalty was ''the mechanism for encouraging operator compliance with safety and health
standards." Legis. Hist. at 85; In reviewing the relevant legislative history, the D.C. Circuit
concluded that "Congress was intent on assuring that the civil penalties provide an effective
deterrent against all offenders, and particularly against ()ffenders with records of past violations."
Coal Employment Project v. Dole, 889 F.2d 1127, 1133 (D.C. Cir. 1989).6

6

The importance of civil monetary penalties was recogriized by the Supreme Cotirt even
prior to the passage of the Mine Act. In National Independent Coal Operators; Assoc. v. Kleppe,
423 U.S. 388, (1976), a suit brought to enjoin the use of regulations adopted for assessing civil
penalties under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.
(1976), the Court recognized that:
The importance of § 109 [the Coal Act's civil penalty provisions]
cannot be overstated. Section 109 provides a strong incentive for
compliance with the mandatory health and safety standards. That ·
the violations of the Act have been abated or miners withdrawn
from the dangerous area before § 109 comes into effect is not
dispositive; if a mine operator does not also face a monetary
penalty- for violations,·he has little incentive to eliminate dangers
until directed to do so· by a mine inspector.... A major objective
of Congress was prevention of accidents and disasters; the
31 FMSHRC 892

It is against this backdrop .that we now tum to the merits of the individual motions to
reopen. 7
·
·

Il.

Cases in Which Denial ofRelief is Warranted.
A.

Double Bonu8. Coal Co.• Docket Nos. WEVA 2008-879 and WEVA i008-880

On April 3, 2008.,8 Double Bonus asked the Commission to reopen two penalty
assessments that had become final upon the operator's failure to contest the penalties within 30
days. Docket Nos. WEVA 2008-879 and 2008-880. On July 31, 2007, and October 30, 2007,
MSHA had issued proposed penalty assessments to Double B()nus.. After receiving no response,
MSHA sent Douple Bonus delinquency notifications on November 1, 2007, and January 23,
2008, for those assessments. Double Bonus alleged that it failed to timely respond to the
proposed penalty assessments because of several personnel changes, different internal document.
routing procedures due to different delivery services, and a staff that was confused and failed to
appreciate the importance of the proposed assessments or the time limits contained in them.
Double Bonus also asserts that it "has established a procedure to insure that all assessment
documents are properly chat1Jleled to the appropriate office."
After initially not opposing reopening,. the Secretary changed her position .in her March 2,
2009 opposition. She cited the two cases as the start of either a pattern of carelessness by the
operators with respect to responding to assessments .or an indication that they lack credibility.
regarding their explanations for their failures to timelyrespqnd. S'. Pay Car IIOpp'n at 12-17.
She pointed out that the excuses offered in these two cases were identical even though the
assessments were issued three mo~ths apart. Id. at 15. She also argued $at the requests to
reopen were not flled by Double Bonus until six months and two and one half months,

deterrence provided by monetary sanctions is essential to that
objective.

Id. at 401.
7

Invoking ''the interest of efficiently disposing of these cases," slip op. at 4, our
colleagues summarily grant relief in all of them. Although our colleagues acknowledge the
"significant issues" raised by the Secretary in her opposition to the motions to reopen, they would
grant relief without addressing any of them, because they consider the operator's prepayment of
penalty to "reasonably satisf[y]" these concerns. Id. This would reward an operator whose track
record in failing to contest penalties is egregious, and who accumulated so many delinquent
penalties involving such a large sum of money that the Secretary took the unprecedented step of
asking the Commission to condition any grant of relief on a penalty prepayment.
8

See note 5, supra.
31 FMSHRC 893

respectively, had passed from the time MSHA had sent delinquency notices to the operator
regarding the assessments. Id. at 17 & n.39. 9

In a reply dated April 2, 2009, and also in the Justfoe Companies' replydated March 27, ·
2009 in Pay Car II, Double Bonus attributed the failure to timely respond to the assessments to a
breakdown somewhere in the chain of custody of the assessments. Double Bonus stated that the
breakdown may have occurred because ofMSHA's change in delivery agents for assessments
from the U.S. Postal Service to Federal Express. Double Bonus Reply at 2-3; Pay Car //Reply
at 8, 13-14, 15. It idelitified atiother breakdown point in moving the assessments from the mine
at Pineville, WV to its business office in Beckley, WV. Double Bonus Reply at 2-3; Pay Car fl
Reply at 16. Double Bonus claimed it first learned of the delinque.ncies in late January 2008, and
thereafter moved to improve its handling of assessments. Double Bonus Reply at 3-4. Its reply
includes a three-page affidavit from Pat Graham, the first half ofwhich addressed these tWo
cases. Double Bonus also argued that later cases show that the assessments in these cases may
not have ever been delivered to Double Bonus. Id. at 2-3; Pay Carl/Reply at 15-16.
In her April 13, 2009 consolidated reply, with respect to these two cases, the Secretary
argues that safety director Patrick Graham in his affidavits and other evidence establishes a
pattern of carelessness by the operators. S. Surreply at 6. With regard to the question whether
Double Bonus received the assessments, the Secretary notes that Double Bonus received other
correspondence from MSHA at the addresses onthe·respective assessments. Id. at 8. She also
notes there is no explanation for why Double Bonus took so long to file requests to reopen after
receiving delinquency notices. Id. at 8-9. · '· ·
After carefully reviewing the operators' submissions in this matter, we are still unable to
discern a cogent explanation of why the failure to timely contest these penalties might constitute
excusable neglect. The pleadings merely identify several potential problems: personnel were
confused by the delivery of mail by Federal Express, Double Bonus Reply (Aff. of Pat Graham at
1); there was a change in personnel receiving penalty assessments, Double Bonus Mot. at 1;
confused staff members did not know the importance of proposed assessments and their related
time deadlines, id. at 2; there were transmission problems to the Beckley office, Double Bonus
Reply at 3. Reciting this list of possible excuses, with no detailed explanation as to why the
penalties were not timely contested, does not justify relief. We therefore would deny Double
Bonus' request to reopen in these two dockets.

9

Although the delay in Docket No. WEVA 2008-897 was five months, not six, we are
nevertheless troubled by the operator's lack of diligence in seeking relief.
31 ·FMSHRC 894

B.

Double Bonus Coal Co.. Docket No. WEVA2008-1354; Dynamic Energy. Inc..
Docket No. WEVA 2008-1448; Pav Car Mining. Inc .• Docket No. WEVA 20081563 ("Pay Car F'); Bluestone Coal Corp.. Docket No. WEVA 2008-1661

On June 20, 2008, Double Bonus filed a motion to reopen an assessment dated April 29,
2008 that had become a fi,nal Commission order upon the operator's failure to c9ntest the·
penalties. Docket No. WEVA 2008-1354., Double Bonus asserted that it first learned of this
penalty assessment when Mr. Graham was reviewing data on MSHA's.data rytrieval system on
June 11, 2008. It subsequently discovered that the proposed assessment had been lost or
misplaced due to internal handling problems.
·
On July 2, 2008, Dynamic filed a motion to reopen a penalty assessment that had become.
a final Commission order upon the operator's failure to contest the penalties. Docket No.
WEVA 2008-1448. On March 31, 2008, MSHA assessed proposed penalties resulting from four
orders that were issued in December 2006. According to Dynamic, the proposed.assessment was
''misplaced or lost." In a letter dated June 19, 2008, MSHA infoniled Dynamic that the civil
penalties were delinquent. 10 Dynamic contended that it conducted a search for the proposed
assessment and could not locate it. Dynamic claimed that it had always intended to contest the
violations because they had-been designated by MSHA as unwarrantable. The motion states in
part:
We have experienced a serious fault in distribution of mail
throughout the corporation. We previously installed a system that
we believed would put the penalty assessm~ts in the proper hands
for contest or payment. That system has obviously failed. Vfe are
. working on a new system that we expect will be successful. The
rotation of.i:iewly hired persons is a problem as more experienced
personnel move up'. The training of new employees is lacking with
respect to assessments. More intense training of new employees
·
has already begun.

Dynamic Mot. to Reopen at 2.
On July 29, 2008, Pay Car filed a motion to reopen an April 29, 2008 proposed
assessment to the operator arising from citations that were issued in February 2008. Docket No.
WEVA 2008"'.1563. According to Pay Car, the proposed assessment was "misplaced or lost."
Pay Car contended that it conducted a s~~ch for the proposed assessment and could not locate it. ..
Pay Car also stated that it had always intended to contest the violations because they had been

10

This assessment had been issued by MSHA on March 31, 2008 and had become final
on May.2, 2008. Dynamic does not explain why Graham did not notice it when he reviewed
MSHA's data retrieval system on June 11, 2008.
31 FMSHRC 895

designated as significant and substantial. The motion also contained the same paragraph
included in the July 2, 2008 Dynamic Motiori to Reopen, quoted supra.
On August 13, 2008, Bluestone filed a motion to reopen a penalty assessment issued in
May2008. Docket No. WEVA 2008-1661. The assessment to Bluestonearose from nine
citations issued during February and March 2008. According to Bltiestone, the proposed
assessment was "misplaced or lost." Bluesfone stated that MSHA _informed it by letter that the
civil penalties were delinquent. 11 Bluestone contended that it conducted a search for the
proposed assessment and could not locate it. Bluestone stated that it had always intended to
contest the violations because of their significant and substantial nature. The motion also
contained the same paragraph included in the July 2, 2008 Dynamic Motion to Reopen, quoted

supra:
The Secretary originally did.not oppose reopening in any of the cases. She did note in
Bluestone, however, that in the previous three months the operator had become delinquent with
respect to 30 penalties that had become final orders. She stated that.her decision not to oppose
reopening was based on the operator's representation that it had experienced a serious problem in
processing assessments and that it was currently training new employees to correct that problem.
In her March 2, 2009 opposition in Pay Car II, the Secretary changed her position and
opposed reopening of all four assessments. She noted the excuses in this Double Bonus case
(WEVA 2008-1354) were identical to the excuses in another Double Bonus case (WEVA 20081355, discussed below). She argued that the excuses in the other three cases (Dynamic Energy,
Pay Car I, and Bluestone), which had been .filed over the course of six weeks between late June
and mid-August, were also identical, although filed by three different operators. S. Pay Car II
Opp'n at 15. She argued that the formulaic and repetitive excuses of poor mail handing offered
by the operators demonstrated that either the excuses were not credible or that their shared mail
processing system was inadequate a year ago and remained inadequate. Id. at 16. The Secretary
also pointed out that in two of the cases, Dynamic Energy and Bluestone, the operators had not
requested reopening until after such time as they would have received delinquency notices from
MSHA regarding the unpaid assessments. Id. at 17.

The operators submitted a reply dated March 31, 2009. They noted that the problem in
these cases was only with transfer of mail to the central office in Beckley. Mar. 31 Reply at 3-4.
They stated that the time period in which this later problem occurred was limited to a two-week
period between late April and mid-May 2008, and that "[t]here have been no similar problems
with distribution since discovering the problem in June 2008." Id. They further noted that upon
learning of the new problems, Graham took steps to retrain personnel on the transfer of mail to

11

Since the proposed assessment was issued on May 8, 2008, it should have been
apparent to Graham when he reviewed MSHA's data retrieval system on June 11, 2008. If
Graham had noticed it then, he could have filed a timely notice of contest, since the assessment
did not become final until June 13, 2008.
31 FMSHRC 896

Other than a brief statement in an affidavit, 12 the only information the operators have
provided us as an e:xplanation for their failure to timely contest these penalties in these four cases
is that a problem existed in transferring proposed assessments to their Beckley business office.
Mar. 31 Reply at 4. This generalized excuse does not warrant reopening. , Moreover, as stated in
notes 10 and 11, supra, and note 13, infra, Graham's. review of the MSHA data retrieval system
every three months clearly was ineffective. Additionally, with this history of problems, it would
be expected that Graham would check the data retrieval system more frequently than every three
months. Accordingly, we would deny relief in these dockets.
C. Justice HighwaliMining. Inc.• Docket No. WEYA 2009-727
· . On January 27, 2009, Justice Highwall filed a request to reopen with regard to Prop.osed
Penalty Assessment No. 000162833, dated September 16, 2008, which MSHA had issued for
two citations in the sum of $120,000. Docket No. WEYA 2009-727. According to the operator, ·
the proposed assessment became a final order either by Justice [Highwall]'s "inadvertence or
mistake.'' It explained that the proposed assessment was received and signed for by Justice
Highwall's receptionist on September 23,.2008. The proposed assessment was believed to have
been electronically transferred to the operator's representative (to contest the penalty) but,
according to computer records, was not transmitted. The operator discovered that th~ proposed
assessment had become a final order of the Commission after it received a letter from MSHA
dated December 10, 2008, stating that Justice Highwall was delinquent in the payment of.
penalties. Justice Highwall Mot. at 1~2. 13

12

In the operator's response in Double Bonus, Docket Nos. WEYA 2008-:879 and
WEYA 2008-880, the affidavit of Graham discusses the circumstances arising in Double Bonus,
Docket No. WEYA 2008-1354. Graham stated only that the operator had determined that a ..
certain clerk had signed for certified mail on May 5, 2008 and placed the mail in the outbox to
the Beckley office. Graham Aff. at 2.
13

In its June 13, 2008 Motion to Reopen in Docket No. WEYA 2008-1354, Double

Bonus represents that Graham "reviews the [MSHA] data retrieval system every three months
looking for potential problems," and had done so on March 11, 2008 and June 11, 2008 .. Double
BonUs Mot. at 2. Under this schedule, Graham would have checked the data retrieval system .
31 FMSHRC 897

In her response filed on February 4, 2009, the Secretary opposed the request on the basis
that the operator had made no showing of exceptional circumstances that warrant reopening. She
argued that the operator's statements that the failure to timely contest the proposed penalties ··
arose from inadvertence or mistake, and that the proposed assessment was thought to have been
electronically transferred to its representative, were conclusory, lacked evidentiary support, and
were insufficient to establish a basis for reopening. The Secretary also faulted the motion for
failing to plead a meritorious defense. S. Opp'n at 2-3.
The operator filed a reply to the Secretary's response in opposition. The submission,
dated March 5, 2009, is primarily directed at the Secretary's meritorious defense argument. It
includes four affidavits from Justice personnel regarding the two citations at issue.
The fifth affidavit fucluded with the reply is from Graham,· the safety director for
Bluestone Industries. Therein, he states that the assessment at issue was one of three in which he ·
informed his document processor that he intended to contest. He states that a procedure that had
been successfully used in the past was again employed, whereby the processor, who he describes
as a dependable employee, would scan the documents and attach them in an e-mail to the
representative. Two of the assessments were forwarded to the representative on September 23,
2008, but the third was not. A hard copy of the assessment was found in the processor's files,
but it had not been electronically transmitted. .Graham states that it could not be detenp.ined
whether the mistake was caused by computer, scanning, or human error, and that "[ o]versight
reviews have been put ill place to prevent the same inistake in the future." Aff. at 2-4. ·
The Secretary in her April 13, 2009 consolidated surreply faulted the Justice response for·
( 1) failing to provide authority for the proposition that the· facts it presented justify a
"presumptive meritorious defense;" (2) failing in the Graham affidavit to offer additional
substantive information,. such as identifying the date on which the processor was hired; and (3)
including conclusory.statements and unreliable hearsay in the Graham affidavit. Surreply at 11.
We would deny relief in this case. The rationale supplied by the operator is one of a·
litany of excuses involving faulty office procedures that have been offered in these proceedings.
Graham's statement in his March 2009 affidavit that "[o]versight reviews have been put in place
to prevent the same mistake in the future" rings hollow in light of the similar pledge in the
operator's submission in Double Bonus Coal, Docket No. WEYA 2008-879 (which also
involved Graham)that as of February 8, 2008, Double Bonus had "established a procedure to
ensure that all a8sessment documents are properly channeled to the appropriate office," and
similar commitments made in separate filings in the summer of 2008. By September 2008 (when
this assessment in Justice Highwall was issued), these operators had been on notice that their
office procedures to timely contest penalty assessments were sorely deficient, and they had

again on or about December 11, 2008. Justice Highwall does not explain why Graham did not
notice that the assessment dated September 16, 2008 had become final ori October 23, 2008. .
31 FMSHRC 898

already fileci eleven requests to reopen final orders. We would therefore deny the operator's
request.

ill.

Cases in Which Granting of Relief is Warranted
.

A.

.

Dynamic Energy. Inc.• Docket No. WEVA 2008-1356; Frontier Coal Co.A Docket
No. WEVA 2008-1357; Bluestone Coal Corp.. Docket No. WEVA 2008-1358;
and Justice Highwall Mining. Inc.,. Docket No. WEVA 2008-1359

The~e four cases involve penalty assessments issued to four Justice companies in April .
2008. According to each of the June 25, 2008 motions filed by the operators, their
representative, James F.Bowman, claims that he placed in a single envelope four letters to ...
MSHA stating that the respective operators wished to contest the penalties. Docket Nos. WEVA
2008-1356, 2008-1357, 2008-1358 and 2008-1359. Although Bowman asserts that the envelope
with the four letters was sent by certified mail on April 28, 2008, he cannot locate the receipt for
the mail. Bowman stated, ''A good faith effort was made to send the Notices of contest which
[have1unfortunately been lost." 1\llot. at 2. Bowman. further avers that the postal service "could
not track mail without a number" and refers to his computer log and business checking account
as support for his allegations. Id. at 1-2. However, initially, no affidavits or documeiits were
filed to.support these statements. Bowman further stated that, when reviewing MSHA's data
base, he discovered that the proposed assessments had become final orders in May 2008. The
penalties in the Dynamic Energy case were for over $285,000, while the penalties in the other
three cases were significantly less than those for Dynamic, for a total of more than $290,000 In
all four dockets.
.

.

.·

.

.

.

.

In her initial responses, the Secretary stated that.she had no record that the penalty co~test
forms were received but, at least at that time, had no basis for q:uestioning that the letters
Bowman described were sent. . Later, however, the Secretary filed her supplemental response ..
opposing the reopening on the.ground the four cases involved Justice-controlled companies, and
that the filing of 11 motions to reopen over the course of a five-month period by Justicecontrolled companies had revealed a pattern of carelessness that meriteci denial of reopening. See
Sec'y's Supplemental Resps. in opp;n to Respt's Mot. to Reopen Civil Penalties at 1 (re~eived ·
Mar. 9, 2008, in each case). In the alternative, the Secret;uy requested that if the. Commission
grants reopening, it do so only on the condition that the operators pay the penalties in their full
amounts pending a decision on the merits of the citations, orders, and penalties. Id. at 4; Sec'y' s
Consolidated Opp'n to Reopening Requests at 3 (filed Mar. 26, 2008).
·
In the operators' reply, a submission dated March 27, 2009, Bowman, as the
"Representative [for] James C, Justice;" reiterated his. original explanation for the failure to file
timely contests of the four assessments .. In support, he submitted an affidavit, as the owner of
Bowman Industries, regarding how he came to mail the contests together by certified mail, what
he did when he learned that the envelope was not received by MSHA, and his unsuccessful
search for the certified mail receipt. He also submitted a copy of a statement showing that on
31 FMSHRC 899

April 28, 2008, he used his debit card to make a $3.96 purchase at the Midway, WV post office,
which he stated was for the certified mail in question. He also submitted evidence and argument ·
as to his good character and credibility, and argued that because this case is different from the
other cases at issue here (in that there was a genuine attempt at a timely filing), these cases
should be judged apart from the cases in which the Secretary argues that there was a pattern of
carelessness in respondi:rig to penalty assessments.
The Secretary in her April 13, 2009 surreply affirmed her opposition to reopening the four
cases. She stated that Bowman has not submitted a copy of the Postal Service forms that would
support his allegations, such as the Certified Mail Receipt or· the Domestic Return Receipt.
Surreply at 7, 10-11. The Secretary argued that this failure provides· further evidence of
carelessness and inattentiveness to record keeping. Id. at 7-8. The Secretary submits that as the
operators voluntarily 'hired Bowman, they must live with the consequences of retaining someone
who appears to have lacked the necessary resources and systems to ensure compliance with·
MSHA and Commission rules. Id. at 6-7.
We would grant the operators' motions in these fom cases.· .·Their submissions, supported
by adequate docuinentatiQn (including copies of the contest letters, an.affidavit and a copy of· ·
Bowman's debit card statement indicating a purchase at the post office on the day in question)
indicate that the operators mailed their requests for.a hearing to MSHA within the 30-day time
limit. The affidavit submitted is sufficiently reliable and supports this allegation. In the
·circumstances presented here, we find that the operators' failure to timely file their hearing
requests with MSHA was due to inadvertence or mistake within the meaning of Rule 60{b)(l ).
See Mingo Logan Coal Co., 31 FMSHRC _ , slip op. at 1-2, No. WEVA 2009-835 (June 1,
2009) (granting operator's motion to reopen where MSHA had no record of receiving a penalty
contest form, but operator submitted affidavit stating that its safety manager had sent a timely
contest form). We ·also note that all. four motions seeking relief were filed in· a timely manner~
either only two days after the delinquency notice was issued ( Frontier Coal), or, in the case of
the other three operafors, prior to receipt of the delinquency notice.
Consequently, we would reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rufos, 29 C.F.R. Part 2700.
B.

Pay Car Mining. Docket No. WEVA 2009-812 ("Pay Car IF')

In a motion dated February 3, 2009, Bowman sought reopening of a December 2, 2008
assessment he discovered had been sent in one day late. Docket No. WEVA 2009-812. The
assessment contained proposed penalties totaling $26,777. Bowman stated that inclement
weather prevented the contest of the·assessment from being mailed the previous day.

The Secretary did not file an individual response to the motion, but instead filed her
March 2, 2009 opposition, in which she began to oppose reopening of alniost all of the James

31 FMSHRC 900

Justice cases. The portion of the re~onse directed at the circumstances in this case is relatively
brief The Secretary argues that the operator failed to make a showing of exceptional·
circumstances, and that the explanation provided fails to name the individuals involved and is not
supported by affidavits from them. S. Pay Car II Opp'n at 5-6. The Secretary also states the
motion did not even attempt to establish a meritorious defense, and failed to address the issue of
good faith. Id. at 6.
In his March 27, 2009 reply, Bowman, on behalf of Pay Car, addressed the Secretary's
response, both with respect to circumstances of the·late filihg in this case anci the overall pattern
alleged by the Secretary. Bowman set forth in detail how the assessment was handled. Pay Car ·
I/Reply at 3-5. He stated that action on the assessment did 'tiot occur until after the holidays, at
which point Bowman was training a new secretary, his wife, on the handling of assessments. ·
According to Bowman, they prepared the contest for mailing on January 5, 2009, but tinlike the
other seven contests prepared that day, itwas not taken to the post office. That it was left behind
was not discovered until January 9, 2009, a day on which weather conditions were too unsafe to
make a trip to the post office, so it was taken the following day, and thus was mailed one day
late. Affidavits from Bowman, hi,s wife, and Patrick Graham regarding this case are included.·
Pay Car also devoted one page of its reply to addressing the meritorious defense requirement. Id.
at7.
>

The Secretary in her April 13, 2009 surreply faults Bowmari for not addressing why.the
assessment was not processed by his company until after it had sat for three weeks. Surreply at
7. The Secretary also takes issue With Pay Car limiting its discussion of its meritorious defense
to one page of argument, unsupported by affidaVits from persons with knowledge of the relevant
facts. Id. at 12.
The Commission has previously granted a motion to reopen a final order when a penalty
contest has been. filed shortly after it was due and the delay was caused by mistake or
inadvertence. See, e.g., Ruscat Enters., Inc., 31 FMSHRC 112 (Feb. 2009) (reopening final order
when: operator was three days late in mailing the contest form); Oak Grove Res., LLC, 31
FMSHRC 115 (Feb. 2009) (reopening final order when operator was one day late in mailing the
contest form); Dickinson-Russell Coal Co., 31 FMSHRC _ , slip op. at 2, No. VA 2009-175
(June 10, 2009) (same). Accordingly, we would grant the motion and reopen·the final order in
this docket.
·
·

N.

Case Warranting Grant ofReliefin Part and Denial of Relief in PartDouble Bonus Coal Co .• Docket No. WEVA 2008-1355

On April 1~ 2008, the Department of Labor's Mine Safety and Health Administration·
(''MSHA") issued proposed penalty assessment No. 000145248 to Double Bonus for penalties
totaling $79,300. After this assessment beeame final because of the lack of a contest by the
operator, Bowman filed a motion to reopen on June 20, 2008. Docket No. WEVA 2008-1355.
Double Bonus asserts that it first learned of the penalty assessments when its safety director was

31 FMSHRC 901

reviewing data on MSHA's data retrieval system on June 11, 2008. It s~bsequently discovered· .
that the proposed assessments were not contested due to internal handling problems.
Specifically, it claims that when the proposed assessment was transferred from the ofJ.ice where. it
was delivered to an accounting office, it was lost or misplaced. It states that a clerk received the
proposed assessment on April 9, 2008, gave the documents to a mine official, ·c:i.nd he sent them to
the accounting office. Double Bonus Mot. at 2.
A second motion to reopen was filed by counsel on August 1, 2008. In that motion,
however, counse}requested reopening only for the civil penalty proceeding for Citation No.
7259169. Counsel also filed a supplemental pleading on March 23, 2009, responding to the.
Secretary, in which he stated that the motion to reopen was filed because the assessment
pertained to Citation No. 7259169, arising from an investigation into a fatality at the mine. He
noted that the operator had filed a timely pre-penalty notice of contest of that citation, pursuanUo
Commission Procedural Rule 20, 29 C.F.R. § 2700.20, demonstrating its intent from the outset to
contest the penalty, and filed its motion to reopen when it realized a mistake had been made.
March 26 Reply at 2. In addition, he objected to the Secretary's attempt to group this motion to
reopen with others pending before the Commission. In his March 2009 submission, unlike. in his
August 2008 motion, counsel requested that all of the penalties in the docket be reopened, not ·
just the one associated with Citation No. 7259169. However, he failed to provide any
explanation as to why the other final orders warranted reopening.
In her April 13, 2009 surreply in these cases, the Secretary urges the Commission to reject
the operator's argument on many grounds, including.the fact that the operator failed to explaiil. .•
how its contest of one citation justifies reopening the other 45 citations in the assessment c~e..
Surreply at 9.
The Commission has previously granted motions to reopen when the operator.has filed a ..
notice of contest of the underlying citations. For example, in Phelps Dodge Sierrita, Inc~, 24
FMSHRC 661 (July 2002), the operator inadvertently paid the assessment at issue, along with
fourteen other assessments. it intended to pay~ In granting relief, the Commission indicated that
"[t]he mostcompelling indication of Phelps Dodge's
. intention to contest this penalty is the
notice of contest it filed concerning[the underlying citation]."· Id. at 662; see also Holnam Texas
Ltd., 24 FMSHRC 436 (May 2002) and Kaiser Cement Corp., 23 FMSHRC 374 (Apr. 2001) .
(both granting relief from final orders when notices of contest for the underlying citations had
been filed). 14
.

However, we believe the Secretary is correct in arguing that granting relief on this basis
does not merit reopening ofthe remaining penalties in the same assessment. Other than the
general excuse about internal document transmittal problems (similar to those offered mmany of
the other cases discussed herein), the operator provides no information on which to justify a
14

All three of these.cases also involved inadvertent payment of the p~nalties by the

operator.
31 FMSHRC 902

claim that the failure to timely contest the penalty was based on excusable neglect.
Consequently, we would grant the reopening of the $723 penalty assessed for Citation No.
7259169, and deny relief for the other penalties in the April I, 2008 Assessment Case No.
000145248.
V.

Conclusion

For the foregoing reasons, we would grant the requests to reopen in Dynamic Energy,
Inc., Docket No. WEVA 2008-1356; Frontier Coal Co., Docket No. WEVA 2008-:-1357;
Bluestone Coal Corp., Docket No. WEVA 2008-1358; Justice Highwall Mining, Inc.~ Docket
No. WEVA 2008-1359; and Pay Car Mining, Docket No. WEVA 2009-812; and the penalty
associated with Citation No. 7259169 in Double Bonus Coal Co., WEVA2008-1355. We would .
order the Secretary to proceed with these cases and file her penalty petitions within 45 days of
this order. We would deny the requests to reopen in Double Bonus Coal Co., Docket Nos.
WEVA 2008-879 and WEVA 2008-880; Double Bonus Coal Co., Docket No. WEVA 20081354; Dynamic Energy, Inc., Docket No. WEVA 2008-1448; Pay Car Mining, Inc., Docket No.
WEVA 2008-1563 ("Pay Carr'); Bluestone Coal Corp., Docket No. WEVA 2008-1661; and
Justice Highwall Mining, Inc., Docket No. WEVA 2009-727; and with regard to the remaining
penalties in Double Bonus Coal Co., Docket No. WEVA 2008-1355.

Robert F. Cohen, Jr.; Commissioner

31 FMSHRC 903

Distribution:
Robert H. Beatty, Jr., Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
James F. Bowman
P.O.Box99
Midway, WV 25878
Thomas A. Paige, Esq.,
Office of the Solicitor
U.K Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Stephen W. Ball, Esq.
Bluestone Industries, Inc.
P.O. Box 1085
Beckley. WV 25802-1085
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor ·
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 904

FEDERAL MINE SAFETY AND HEALTH
Rt;VIEVV
COMMIS.SION
.
·..
~

601. NEW JERSEY AVENUE, NW . ·
SUITE 9500.
WASHINGTON, DC 20001

August 26, 2009
SECRETARY OF LABOR,.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
· DocketNo. WEVA 2009-1592
A.C. No. 46-07908"' 179891

v.

PINE RIDGE COAL COMPANY, LLC
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On June 22, 2009, the Commission received from Pine Ridge
Coal Company, LLC ("Pine Ridge'') a motion by counsel to reopen a penalty assessment that had
become a final .order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C .
. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that mappropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section lOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section.105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure Un.der which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 CF.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 905

On March 19, 2009, tb.e Departfilent of Labor~s Mine SafetY and Health Administration
("MSHA") issued Proposed Assessment No. 000179891 to Pine Ridge for 22 citations MSHA
had issued to the operator over the previous two months. Pine Ridge states that it intended to
contest 12 of the proposed penalties, but because of a "clerical error'' it failed to return the
contest form to MSHA. The operator later paid the other ten penalties. The Secretary of Labor
states that she opposes reopening the proposed assessment on the ground that the proffered
ground for reopening does not rise to the level of exceptional circumstances.
Having reviewed Pine Ridge's request and the Secretary's response, we conclude that
Pine Ridge has failed to provide a sufficiently detailed explanation for its failure to timely contest
the proposed penalty assessment. Pine Ridge's explanation that it failed to file a timely contest
due to a "clerical error," without any further elaboration, does not provide the Commission with
an adequate basis to justify reopening of the assessment. Accordingly, we deny without
prejudice Pine Ridge's request. See, e.g., Eastern Associated Coal LLC, 30 FMSHRC 392, 394
(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 906

Distribution:
Melissa Robinson, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the. Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
_
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 907

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-143-M
A.C. No. 33-01354-160482

v.
OGLEBAY NORTON INDUSTRIAL
SANDS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 3, 2008, the Commission received from
Oglebay Norton Industrial Sands, Inc. ("Oglebay") a motion made by counsel seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
31 FMSHRC 908

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The record indicates that the operator intended to contest two proposed penalties and to
pay one of the three penalties contained in the proposed assessment. The operator had already
contested the two orders underlying the two penalties it intended to contest. It submitted the
penalty payment on a timely basis, but an employee inadvertently failed to send MSHA the
contest form for the other two penalties at the same time. The operator realized its mistake and
submitted its request for relief before a delinquency notice was issued. The Secretary states that
she does not oppose reopening the proposed penalty assessment.
·
··
Having reviewed Oglebay's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to.the Mine Act and the Commission's Procedural Rules, 29 C.F~R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
ofpenaltywithin45 days of the date ofthis order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 909.

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Ceri.ter, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 1522_2
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J: Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue; N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC910

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9590
WASHINGTON, DC 20001

August 27, 2009
SECRETARY OF LABOR,
MINE SAFETYAND HEALTH
ADMlNISTRATION (MSHA)

:

..
·.
. Docket No. WEVA 2009-423
A.C. No. 46-09028-159728

v.
•.

.

Docket No. WEVA 2009-424
A.C. No~ 46-09028-162606 .

METTIKI COAL WV, LLC
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On December 4, 2008, the Commission received from
Mettiki Coal WV, LLC ("Mettiki") motions made by counsel seeking to reopen penalty
assessments that had become.final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a firial order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc,, 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section 10.S(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal R~es of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-423 and WEVA 2009-424, both captioned Mettiki
Coal WV, LLC, and both involving similar procedural issues. 29 C.F .R. § 2700.12.
31 FMSHRC 911

See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedlire"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaUlting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1_995).
The record indicates that the operator intended to contest five proposed penalties on tWo
proposed assessments and to pay the remaining penalties contained on those assessments.
Mettiki submitted the penalty payments on a timely basis, but it failed to send MSHA the contest
forms for the proposed penalties at the same time. The operator states that its safety director, who
had never contested penalties before, mistakenly assumed that its main mine office, which is
responsible for penalty payments, would also send the contest forms to MSHA.
The Secretary states that she does not oppose reopening the proposed penalty
assessments.
Having reviewed Mettiki's requests and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remandit to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC912

Distribution:
Gary D. McCollum, Esq.
Mettiki Coal , WV LLC.
771 Corporate Dr., Suite 1000
Lexington, KY 40503
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 • ·
Washington, D.C 20001-2021

31FMSHRC913

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-293-M
A.C. No. 22-00035-167206

v.
OIL-DRI PRODUCTION COMPANY

BEFORE: Jordan, Chairman; Duffy , Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C .
§ 801 et seq. (2006) ("Mine Act"). On February 13 and July 29, 2009; the Commissicm received.·
from Oil-Dri Production Company ("Oil-Dri") requests to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 29, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000167206 to Oil-Dri, proposing penalties for 12
citations that had been issued to Oil-Dri in July and August 2008. After receiving no response,
MSHA sent Oil-Dri a delinquency notification on or around January 26, 2009, for the
assessment. In its first request to reopen, Oil-Dri stated that it intended to contest some of the
penalties and pay the others, but had no record of having received the assessment, even though
MSHA records indicate that it was signed for by a particular Oil-Dri employee. The Commission
denied Oil-Dri's request to reopen without prejudice, stating that if the operator chose to file a
new or amended motion to reopen, it needed to specify which penalties it wished to contest upon
reopening. See 31 FMSHRC _ , slip op. at 2 (July 14, 2009). The Commission further

31FMSHRC914

instructed Oil-Dri to include an affidavit from the particular employee who MSHA alleges signed
for the assessment regardllig.the employee's knowledge of the assessment. Id.
Oil-Dri filed a second request'to reopen on July 29, 2009, specifying nine of the proposed
penalties it wishes to contest upon reopening, atid stating that it has paid the other three penalties.
It also included with its second request the affidavit requested by the Commissfori, wherein the
employee in question states that she signed for the package containing the assessment. She
further explains that she would have placed any such package in the company's internal mail
system, but she has no recollection of that particular package.
The Secretary did not oppose Oil~Dri's original request for reopening and did not respond
to its second request.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested a~sessments that have become fmal Commission orders under section 105(a). Jim
Walter Res.; Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
·Federal Rules. of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on th.e basis of mistake, inadvertence, or excusable neglect.
See29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, .the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 915

· Having.reviewed Oil-Dri;;s requests and the Secretary's response, in the.interests of ...
justice, we hereby reopen this matter and remand it to the Chief Adtninistrative Law Judge for .
:further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly; consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the d~te of this order. See 29 C.F.R. § 2700.28.
· ·

Robert F. Cohen, Jr., Commissioner

31FMSHRC916

Distribution:
Larry R. Evans, Safety Mngr.
Oil-Dri Production Co.
P.O. Box 380
Ochlocknee, GA 31773
W. Christian Schumann; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 ·
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W~, Suite 9500
Washington, D.C. 20001-2021

31FMSHRC917

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-:-3.95-:R

v.
MACH MINING, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 13, 2009, pursuant to section 104(d)(l) of the
Mine Act, 30 U.S.C. § 814(d)(l), the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a withdrawal order to Mach Mining, LLC ("Mach"), alleging a
violation of30 C.F.R. § 75.370(d), a ventilation plan regulation. 1 Mach filed a notice of contest,

1

The cited safety standard provides:
No proposed ventilation plan shall be implemented before
it is approved by the district manager. Any intentional change to
the ventilation system that alters the main air current or any split of
the main air current in a manner that could materially affect the
safety and health of the miners, or any change to the information
required in § 75.371 shall be submitted to and approved by the
district manager before implementation.

30 C.F.R. § 75.370(d). The withdrawal order alleges the following violation:
A proposed ventilation plan dated February 25, 2009 was
implemented before it was approved by the district manager. The
mine operator has mined over 1000 feet inby the location of the
31 FMSHRC 918

and in an order dated May 15, 2009, ruling on cross motions for summary decision filed by the
Secretary of Laborand Mach, Administrative Law Judge Richard Manning held that Mach had
violated section 75.370(d). 31 FMSHRC709,7i3-15 (May 2009) (ALl).2
Mach subsequently submitted a modifled ventilation plan for approval to MSHA in order
to abate the violation~ MSHA did not agree that the violation had been abated and refused to
termfuate the order of withdrawal. Mach then requested a hearing on whether the violation has
been abated and the order should temrinate, and the judge ~et the case for hearing. The Secretary
filed a motion to canc~l the hearing on the ground that the Coinmission lacks jurisdiction to
·
determine whether abatement has occurred and order termination of the order. .
On August 18, 2009, the judge denied the Secretary's request to cancel the hearing based
on his conclusion that he had jurisdiction to review the order. The Secretary subsequently
requested that the judge reconsider his decision or, in the alternative, certify the question of
jurisdiction for interlocutory review by the Commission. Mach filed a response in opposition to
both requests., On August 25, 2009, the judge denied reconsideration but granted the request for
·
certification.

proposed set up rooms in headgate No. 3. The drawing titled
"Ventilation Plan Map for future Longwall Operations" dated
March 19, 2006, which is part of the currently approved ventilation
plan for this mine approved on March 18, 2008, shows a six panel
design with all six p~els approximately 18,000 feet deep without
any stair steps.
Order No. 8414238.
2

The judge denied the Secretary's motion for summary decision on the issue of whether
the violation was due to Mach's unwarrantable failure, and ordered the parties to confer as to that
issue and the issue of negligence. 31 FMSHRC at 715, 716.
31FMSHRC919

Interlocutory review is a matter of sound discretion of the Commission. 29 C.F.R.
§ 2700.76(a). The Commission will grant interlocutory review upon a majority vote that a
judge's interlocutory ruling involves a controlling question of law and immediate review Will
materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(2). Upon
consideration of the judge's certification, all.four Comniissioners agree that the ruling involves a
controlling question oflaw. Chairman Jordati and Commissioner Cohen further· conclude that
immediate review would materially advance the final disposition of the proceedipg and thus
would grant interlocutory review. Commissioner Duffy and Commissioner Young do not agree
and would deny review. Accordingly, because there is not a .majority of Commissio~ers wh.
would grant interlocutory review, it is denied.
·
. .

o

Michae

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 920

Distribution:
Suzanne F. Dunne, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., gth Floor
Chicago, IL 60604
Daniel W. Wolff, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
Morris Niday
Miner's Representative
Mach Mining, LLC
P.O. Box 300
Johnston City, IL 62951
Administrative Law Judge Richard W. Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

31 FMSHRC 921

31 FMSHRC 922

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

July 14. 2009
MARFORK. COAL COMPANY,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. WEYA 2007-564-R
Citation No. 7259269; 06/20/2007

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

Docket No. WEYA 2007-565-R
Order No. 7259270; 06/20/2007
White Queen
Mine ID 46-08297

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEYA 2007-716.
A.C. No. 46-08297-122438.

v.
Docket No. WEYA 2008-385
A.C. No. 46-08297-133173
MARK.FORK. COAL COMPANY,
Respondent .

White Queen

CONSOLIDATION ORDER
AND
DECISION APPROVING SETTLEMENT

Appearances:

Benjamin D. Chayki~ Esq., Office of the Regional Solicitor,
.U.S. Department of Labor, Arlington, Virginia, for the Petitioner;
Matthew Nelson, Esq., Dinsmore & Shohl, LLP, ·

Morgantown, West Virginia, ·for the Respondent·
Before:

Judge Feldman

The captioned civil penalty in Docket Nos. WEVA 2007-716 and WEVA 2008-385
were the subject ofa hearing that commenced on April 21, 2009, in St. Albans, West Virginia.
The contest proceedings in Docket Nos. WEVA 2007-564-R and WEYA 2007-565-R, that
concern 104(d)(l) Citation No. 7259269 and 104(d)(l) Order No. 7259270 contained in the

31 FMSHRC 923

civil penalty proceeding in WEYA 2008-385, had been stayed. Subsequent to the hearing,
on June 23, 2009, the stay of the contests was lifted by the Chief Administrative Law Judge,
and, these contests were assigned to me. Consequently, IT IS ORDERED that the captioned
contests ARE CONSOLIDATED for disposition with the captioned civil penalty matters.
The captioned matters concern Petitions for Assessment of Civil Penalty filed pursuant to
section 1 lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), as amended,
30 U.S.C. § 820(a), by the Secretary of Labor (''the Secretary"), against the respondent,
Marfork Coal Company ("Marfork"). The petitions seek to impose a total civil penalty of ·
$76,555.00 for four alleged violations in Docket No. WEYA 2007-716, and seven alleged
violations in Docket No. WEYA 2008-385, of mandatory safety standards contained in ·
Parts 75 and 77 of the Secretary's regulations governing surface and underground portions of
underground coal mines. 30 C.F.R. Parts 75 and 77.
Shortly after the scheduled hearing began, the parties reached a comprehensive settlement
disposing of all matters in issue. ·The parties settlement terms were approved on the record. The
settlement terms were formalized in a Motion to Approve Settlement filed by the Secretary on
June 8, 2009. Specifically, the parties have agreed to reduce the initial $76,555.00 totalcivil ·
penalty proposed by the Secretary to $57,813.00.
The parties agreed to a partial settlement prior to the hearing. Pursuant to their
agreement, Marfork has agreed to pay the original assessed civil penalty of $12, 778. 00 for the
four 104(a) citations in issue in WEYA 2007-716. With respect to WEYA 2008-385,
Marfork has agreed to pay a reduced civil penalty of $45,035.00 iti satisfaction of
the subject five 104(a) citations, one 104(d)(l) citation, and one 104(d)(l) order.
The settlement terms included deleting the significant and substantial designation in
Citation Nos. 7260718 and 7260723.
The parties agreed to settle 104(d)(l) Citation No. 7259269 and 104(d)(l) Order
No. 7259270 in WEYA 2008-385 shortly after the hearing began. 104(d)(l) Citation
No. 7259269 concerns an alleged violation of section 75.202(a), 30 C.F.R. § 75.202(a), that
provides: "[t]he roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and
coal or rock bursts." The citation was issued after the mine inspector observed numerous
hazardous roof conditions including loose and broken rock brows and areas of wide roof bolt
spacing. The cited violation was attributed to an unwarrantable failure. Although the
unwarrantable failure characterization has remained, the parties agreed to reduce the proposed
penalty assessment from $40,180~00 to $28,126.00 based on the vagaries of litigation and
potential conflicts of proof.

31 FMSHRC 924

104(d)(l) Order No. 7259270.involves an alleged inadequate pre-shift examination,
attributed to Marfork's unwarrantable failure, in violation of the mandatory standard in
section 75.360(b), 30 C.F.R. § 75.360{b). The order was issued because the hazardous roof
conditions cited in 104(d)(l) Citation No. 7259269 were not noted during the course ofseveral
pre-shift exaniillations. Ag~ based on the uncertainties of litigation, the parties agreed to
reduce the prqposed civil penalty for Order No. 7259270 from $15,971.00 to $11,180.00.. ·
Section 1 lO(i) of the Mine Act 30 U.S.C. § 820(i), sets forth the statutory civil penalty
criteria used to determiJ:ie the appropriate civil penalty to be assessed. In this regard,
section 11 O(i) provides, in pertinent part:
The Commission shall consider the operator's history of previous .violations, the
appropriateness of such penalty to the size of the business ofthe operator charged,
whether the operator was negligent, the effect on the operator' 5· ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
As noted, the parties settlement terms were approved on the record as their agreement is
consistent with the above statutory penalty criteria. Accordingly, c()nsistent with the parties~
agreement, IT IS ORDERED that Marfork Coal Company shall pay, within 45 days of the date
of this decision, a total civil penalty of $57,813.00 in satisfaction of the eleven citations and
orders in issue in these proceedings. Upon receipt of timely payment, the captioned contest and
civil penalty matters ARE DISMISSED.

Jerold Feldnum
Administrative Law Judge
Distribution:
Benjamin Cbaykin, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Boulevard, 22°d FlOor West, Arlington, VA 22209-2247
·
Matthew Nelson, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310,
Morgantown, WV 26501
/rps

31 FMSHRC 925

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19™ STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

July 28, 2009

CNIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

Docket No. WEST 2008-660~M
A.C. No. 48:-00167-141338

v.
BLACK HILLS BENTONITE, LLC,
Respondent

Mills Plant

DECISION
Appearances:

Ronald Goldade, Conference and Litigation Representative, Mine Safety
an:d Health Administration, Denver, Colorado, and Kristi L. Henes, Esq.,
·.·Office of the Solicitor, U.S. Department of Labor, Denver, Coforado, for
the Petitioner;
Karen L. Johnston, Esq., and Dana M. Bartels, Esq. Jackson Kelly, PLLC,
De11:ver, Colorado, for the Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor ("Secretary"), acting through the Mine.Safety and Health Administration ("MSHA")
against Black Hills Bentonite, LLC, pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was held in
Casper, Wyoming and the parties introduced tesmnony and documentary evidence.

I. DISCUSSION AND FINDINGS OF FACT
AND CONCLUSIONS OF LAW
On August 7, 2007 fuspectoi Gene Scheibe issued Citation No. 6305591 under section
104(a) of the Mine Act, alleging a violation of30 C.F.R. § 56.12016, or in the alternative 30
C.F.R. § 56.14105, as follows:
Electrically powered equipment shall be deenergized before mechanical work is
done on such equipment. Power switches shall be locked out or other measures
taken which shall prevent the equipment from being energized without the
knowledge of the individuals working on it. An employee was attempting to
remove mud from the Briquetter Screw Conveyor when his hand was caught up in
31 FMSHRC 926

the screw causing cuts and a. crushing injury. The conveyor was not locked out or
tagged out. The disconnect was located in the restroom approx 50 to 75 feet
around the comer from.the screw. Employees are trained in ~ockout tag out
procedures.
Scheibe determined that an injuryhad occurred that would likelybe pennanently
disabling.. He determined that the violation was of a significant and substantial nature (S&S) and
that the company's negligence was moderate. The Secretary proposes a penalty of $45,000.00
for this citation.
The parties stipulated to the fact that a violation of 30 C.F.R. § 56.14105 occurred which
was significant and substantial. 1 The Respondent has challenged the level of negligence imputed
to Black Hills Bentonite, as well as the gravity of the violation, for the purposes of assessing the
penalty. Section 56.14105 provides:
.

.

.

.•.

Repairs or m$tenance of machinery or equipment shall be performed. only after
the power is off, and the machinery or equipment blocked against.hazardous
motion. Machinery <?r equipment motion or activation is permitted to the extent
that adjustments or testing cannot be performed without motion or activation,
provided that persons are effectively protected from hazardous motion.
Inspector Scheibe was at the Mills Plant operated.by Black Hills Bentonite 011 official
business unrelated to this case when Ken Lisco, a Safety Trainer employed by Black Hills
Bentonite, told him that an accident had occurred at the mine that day. (Tr.19, 59). The
inspector immediately began an accident investigation and determined that Aaron O'Heam, an
employee of the mine, had sustained an injury to his hand while attempting to. dislodge mud from
the briquette screw conveyor machine while it was in motion. (Tr. 23-26). No witnesses were in
the immediate vicinity at the time of the injury.
Lisco interviewed O'Heamfollowing the accident as part of his internalinvestigation.
Lisco testified that O'Hearn stated he had failed to "lockout/tagout" the briquetter screw
conveyor before opening the safety lid and attempting to remove mud from the machine while it .
was still operating. (Tr. 69). O'Heam's hand was caught, cut, and crushed by moving.
components in the machine before he was able to dislodge it. (Tr. 69). O'Heam underwent
reconstructive surgery for his injury, and returned to work approximately four months after the
accident. (Tr. 72). He no longer works for the company and lives in another state. This
conveyor is shut down at least once a day to clean mud from the screws. (Tr. 118).

1

InspectOr Scheibe iitltially cited 30 C.F.R. § 56.12016 as the section that was violated,
while making a note that 30 C.F.R. § 56.14105 may also have been violated. The parties .
eventually jointly stipulated to a violation of 30 C.F.R. § 56.14105. (Stip. -~ 11 ). The Secretary
has indicated that the citation has been modified to reflect this. (Tr. 137).
31 FMSHRC 927

Inspector Scheibe testified that the safety standard requires the individual performing
maintenance to deenergize the equipment by turning off the main disconneet, put his lock on it,
and fill out a tag that includes his name, the time, and a description of the work being performed.
(Tr. 24-25). Additionally, the individual must block the machinery against hazardous motion.
Scheibe initially determined that the level of negligence was "high", but later adjusted it
to "moderate" due to mitigating factors, including the existence of a lockout and tagout policy,
the availability oflocks and tags, and the employee training that was provided. (Tr. 28).
Lisco testified that new employees are required to read the Black Hills Bentonite Safety
and Discipline Manual ("Manual"); and sign the last page, indicating their obligation to abide by
the policies therein. (Tr. 64-65)~ O'Hearn signed his Manual on March 1, 2007. (Ex. R-1}.The
Manual includes the company's "Safety Lockout and Tagout Procedure," which is designed for
compliance with 30 C.F.R. § 56.14105. 2 (Tr. 65). Lisco testified that Black Hills Bentonite
utilizes various means to implement its safety policy and communicate the lockout and tagout
procedure, including the Manual, on-site training during an employee's introduction into the
work environment3, equipment-specific trai.Jiin:g, annual refresher training courses, and posted
signs and safety procedures. (Tr. 60-64). Additionally, Plant Manager Nathan Plume testified
that he would have occasional one-on-one or group meetings where he discussed safety topics
such as the lockout and tagout procedure. (Tr. 99-100).
Commission administrative law judges assess penalties de novo taking into consideration
the six penalty criteria in section l lO(i) of the Mine Act. Two of those factors are at issue: (I)
negligence of the operator, and (2) the gravity of the violation.
A~ Negligence

Black Hills Bentonite contends that the level of negligence was improperly assigned. The
negligence of a rank-and-file miner cannot be directly attributed to the mine operator for
purposes of penalty assessment. Southern OhiO Coal Co., 4 FMSHRC 1459, 1464 (August
1982). Rather, when "a rank-and-file employee has violated the Act, the operator's supervision,
training and disciplining of its employees must be examined to determine if the operator ha8
taken reasonable steps to prevent the rank-and-file miner's violative conduct" Id. ·

2

The Manual's "Safety Lockout and Tagout Procedure" cautions that any equipment is
potentially dangerous even if it is "presumed to be shut down." (Ex. R-1 ). It also states that
accidents occurring due to improper lockout and tagout most often "cause amputations, serious
fractures, or death." Id. It also sets forth the procedures to be followed in detail.
3

Lisco testified that the on-site introductory training included two videos which
demonstrate the consequences of not following the lockout and tagout procedures. (Tr. 74-75).
31 FMSHRC 928

I find that BlackHillsBentonite's negligence was quite low. O'Heam was a classic rankand-file min~,. an hourly employee and relatively new hire, having been employed by Black Hills
Bentonite for approximately 22 weeks. (Tr. 26, 103).
Plant: Manager Plume testified that he was O'Heam's direct supervisor, and spent
approximately 90% of bis work day walking the floor observing and talking with the miners
regarding production, safety, and training issues. (Tr. 98, 123)
Safety Trainer Lisco provided some additional supervision and conducted mandatory ·
training sessions that covered the lockout and.tagoutprocedure. O'Heam's .sigpature on the
Manual is evidence of bis knowledge of, and obligation to abide by, the lockout and tagout
procedure of Black Hills Bentonite. The New ;Miner Training Records indicate thaf O'Heam
received training on March 14, 2007 regarding how to. correctly operate the briquetter screw
conveyor. (Ex. R-4). This training included the lockout and tagout procedure specific to the
briquetter screw conveyor. (Tr. 76-77). O'Heam's training was current and he had re~ the
safety procedure included in the Manual less than six months prior. Inspector Scheibe' s Field
Notes indicate that the correct lockout and tagout proced:ures were posted throughout the facility.
(Ex. G-4). In spite of his training, O'Heam failed to utilize the locks and tags that were readily
availabie. There is no evidence that. O'Heam had violated any safety procedures, or failed to
initiate the.lockout and tagout procedure, at any time prior to the accident in question. Therefore,
there was i:io reason for Black Hills Bentonite to believe that he would do so in this instance.
While Inspector Scheibe testified :that he was not aware of any dis~ipline policy for
failure to follow safety regulations, both Lisco and Plume testified that Black Hills Bentonite
does have a progressive, discipline policy. (Tr. 37, 38, 90, 100-101). Plume testified that there is
a disciplinary protocol which requires either a verbal or written reprimand for the first offense,
and more. severe penalties for subsequent violations of the safety policy. (Tr. 100-101 ). ·Two of
the more severe disciplinary actions are suspension without pay and emplo:Yment termination.
(Tr. 101):.
Given the level of supervision and training.provided by the operator, the record does not
support a moderate level of negligence on Black Hills Bentonite's part. Black Hills Bentonite's
mana.gement clearly understood .the importance of lockout and ta.gout procedures and
comni.ullicated this information to its employees. I credit the company's evidence on this issue.
In addition, the lockout and tagout stations at the plant were clearly marked and well maintained.
(Ex. R-7 pp. 2, 6-10). As a consequence, I find that the negligence was very low.
B. Gravity

Black Hills Bentonite asserts that the Secretary improperly assigned the gravity of the
violation, specifically the severity of the injury. Gravity is "often viewed in terms of the
seriousnes.s ofthe violatipn." Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996).
The seriousness of a violation can be examined by looking at the importance of the standard
31 FMSHRC 929

which was violated and the operator's conduct with respect to that standard, in the context of the
Mine Act's purpose oflimiting violations and protecting the safety and health of miners. See
Harlan Cumberland Coal Co., 12FMSHRC134, 140 (Jan. 1990) (ALI).
I find the gravity of this violation to be high. The parties agree that the violation was
S&S. (Stip. if 13). While the citation listed the severity of the injury as reasonably expected to·
be permanently disabling, O'Hearn, nevertheless, retuined to work four months later: The safety .
standard seeks to protect miners from being injured while repairing or performing maintenance
on machinery or equipment. The regulation is of high importance· given the dangerou8 nature of
servicing large powerful equipment while it is in motion. There is no dispute that O'Heatn
suffered a severe injilry to his hand as a result of failing to follow the operator's lockout and
tagout procedure with respect to the briquetter screw conveyor. While Black Hills Bentonite
provided ample training to prevent such a circumstance, the severity ofinjury in this case, which
potentially could have been much worse ifO'Hearn had not been able to dislodge his hand, lends
itself to a finding of high gravity.

II.· APPROPRIATE CIVIL PENALTIES
The penalty proposed by the Secretary was specially.assessed and is too high for this
violation, especially since I have reduced the level of negligence attributable to the operator.
Although the gravity was high, the operator took all reasonable steps to prevent this type of
injury. Section l IO(a) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. Black Hills Bentonite wa8 issued l 5 citations at the Mills Plant in the
24 months prior to August 8, 2007. (Ex. G-9). In 2007there were 75,772 hours worked at the
Mills Plant, and somewhere between 200,000 and 300,000 hours worked at all Black Hills
Bentomte facilities. 4 (Stip. if 9, Ex. G-8). My findings with respect to negligence and gra\rity are
set forth above. The penalty assessed in this decision will not affect Black Hills Bentonite's
ability to continue in business. Respondent demonstrated· good faith abating the cited condition.
(Stip. if 7, 8). Based on the penalty criteria, I find that the penalty set forth below is appropriate.
ID. ORDER

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties.
Citation No.

30.C.F.R. §

Penalty

6305591

56.14105

$900.00

4

The number of hours worked in 2007 for all Black Hills Bentonite operations was
determined by taking the penalty points from ~·controller size"designation on the Proposed .• ·.
Assessment Form and then· cross referencing that with the corresponding annual hours worked on
Table N-Size of Controlling Entity-Metal/Nonmetal Mine at 30 CFR § 100.3(b).
31 FMSHRC 930

For the reasons set forth above Black Hills Bentonite, LLC, is ORDERED TO PAY the
Secretary of Labor the sum of$900.00 within 30 days of the date of this decision. 5

Richard W. Manning
. Administrative Law Judge

Distribution:
Ronald Goldade, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail)
Kristi Henes,,~~q:, Offi<:e ~f the Solicitor, U.S. Department of Labor, 19.99 Broadway, Suite
16,00, Den.Yer, c9. 80202 (Certified Mail)

Kare~ Johnston, Esq, aD:d Dana B,~els, Esq, Jackson Kelly PLLC, 1099 18th Street, Suite 2150,
Denver, CO 80202-1958 (Certified Mail)

5

·

·

Payment should be sent to Mine Safety and Health Administration, U,S. Depaqment of
Labor, P.O. Box 790390, St. Louis, MO 63179-0390 , .
.
31 FMSHRC 931

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001 ·2021

July 30, 2009

JIM WALTER RESOURCES, INC.
Contestant

CONTEST PROCEEDING
Docket No. SE 2009-500-R
Citation No. 7696888; 05/01/2009

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
Respondent

No. 7Mine
Mine ID 01-01401

DECISION
Appearances:

DavidM.Smith,Esq.,WarrenB.Lightfoot,Jr.,Esq.,andA.ChristineGreen,
Esq., Maynard, Cooper & Gale, P.C., Birmingham, Alabama, and Guy
Hensley, Esq., Brookwood, Alabama on behalf of the Contestant;
Uche Egemonye, Esq., and Thomas Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia and Nashville Tennessee,
respectively, on behalf of the Respondent.

Before:

Judge Melick

me

This case is before
upon Contestant's request for expedited hearings to challenge Citation
Number 7696888 issued pursuant to section 105(d) of the Federal Mfue.Safefyarid HealthAct of
1977, 30 U.S.C. § 801 et seq., the "Act". The citation alleges that Jim Walter Resour~es Inc., (JWR)
was operating its No. 7 Mine with an unapproved ventilation plan in violation :of3() C.F;R. § ·
75.370(a)(l). 1 More specifically the citation charges as follows:
·
Conceptual approval was given on April 3, 2008 for the sealing plan
of D, E, F, G, H, and I panels in the northeast gob contingent in part
upon compatibility with requirements in the rule-making process for
sealing. The rule making process has been completed and it has been
determined that the previously approved conceptual plan does not
comply with all requirements contained in the Sealing ofAbandoned
Areas, Final Rule and 30 CFR 75.364. Therefore, the conceptual
approval was rescinded. The plan does not adequately address the

The cited standard requires, in· essence, that the mine operator develop and f~llow a
ventilation plan approved by the Secretary.
1

31 FMSHRC 932

ability to access and examine the seals after construction, not only for
sampling procedures, but also for inspection during and after the .
curing process. Discussions concerning the issues have been··
conducted and the process is at an impasse. By letter dated April 23,
2009 and received via fax on April 27, 2009 the Operator has adopted
a ventilation plan containing seal provisions required by 75.371 (ff)
.that cannot be approved.
On March 28, 2008, JWR submitted a ventilation plan supplement (Plan Supplement)to the
Department of Labor's Mine Safety and Health Administration (MSHA)(Govt, Exhs. No. 3 .and 5).
As noted in the citation, on April 3, 2008, MSHA approved the Plan Supplement conditioned upon
compliance with final rules regarding the sealing of abandoned areas (Final Rules), not yet published
but then under consideration by the Secretary.2 The Final Rules were published on April 18, 2008,
and introduced a requirement that mine operators must "maintain and repair seals to protect miners
from hazards of sealed areas"(Govt. Exb,. No. 9). MSHA there':lfier, on December 16, 2008,
rescinded its conditional approval of the Plan Supplement (Govt. Exh. No. 3). On April 23, 2009,.
JWR adopted the rescinded Plan Supplement under procedures set forth inMSHA' s Program Policy
Manual to accommodate mine operators who wish to contest disputed ventilation plans (Govt. Exh.
No. 15). Accordingly, by agreement between MSHA and JWR, MSHAinspector Harry Wilcox
thereupon issued the citation at bar on May 1, 2009. On the same day, JWR abated the citation by
adopting its approved ventilation plan. On May 9, ·2009, JWR filed the instant notice of contest
challenging the citation and the decision to rescind the Plan Supplement.
The Secretary maintains that the basis for her disapproval ofthe Plan Supplement is that, if
implemented, it would violate the mandatory standards at 30 C.F.R. §§ 75.364(b)(4),.75.364 (c)(3)
and 75.337(a). As noted, Section 75.337(a) represents the codification of one of the final rules
published following the conditional approval of the Plan Supplement.
When the Secretary disputes a ventilation plan proposed by a mine operator, the Secretary
has the burden of proving the unsuitability ofthe plan. See Secretary v. Peabody Coal Company 18
FMSHRC 686 (May 1996), aff'd l 11F.3d 963 (D.C. Cir. 1997). The Commission has defined
"suitable" as "matching or correspondent", "adopted to a use for purpose", "fit", "appropriate from
the view point of... convenience, or fitness: proper, right," "having the necessary qualifications:
meeting requirements." Peabody 18 FMSHRC at 690 quoting Webster's Third New International
Dictionary 2286 (1986). Clearly, if a plan proposed by the mine operator would, if implemented,
violate mandatory standards then it would also be unsuitable. ·
John Urosek has a Bachelor ofScience degree in mining engineering from Pennsylvania State
University and is a registered professional engineer. He is presently MSHA's chief of mine
emergency operations. In that capacity he is responsible for administering MSHA 's seal approval

2

The Final Rules were being developed following explosions and seal failures at the
·
Sago and Darby mines resulting in multiple fatalities (Govt. Exh. No. 28 p. 7).
31 FMSHRC 933

program. He was also chairman of the committee which developed the Final Rules for the sealing
of abandoned areas. Mr. Urosek is eminently qualified as an expert in mining engineering and, in
particular, in regard to mine ventilation and mine explosions (Govt. Exhs. No. 20 and 28). Mr.
Urosek has also been designated as the sole decision maker authorized to speak for the Secretary of
Labor on this matter and therefore he is the designee to be given deference· in· interpreting the
agency's regulations should that be necessary. See Thomas Jefferson UniVersity v. Shala/a, 512 U.S.
504,512 (1994); Akzo Nobel Salt, Inc. et.al. v. Federal Mine Safety and Health Review Commission
and Secretary ofLabor, 212 F.3d 1301 (2000); Michigan Citizens for Indep. Press v. Thornburgh,
868F.2d1285, 1293 (D.C. Cir. 1989); Homemakers N. Shore, Inc., v, Bowen 832 F.2d408, 413 (7th
Cir. 1987); RAG Cumberland Resources v: FMSHRC, 272 F.3d 590, 598 (D.C. Cir. 2001).
Urosek explained in his direct examination that JWR had requested a change to the mine
ventilation plan for its No. 7 Mine to allowthe use of seals to separate the active longwall panel from·
the adjacent mined-out fongwall panels (Govt. Exh. No. 28). 3 As the active longwall begins to mine,
these seals, he explained, would not be accessible and could not be examined for hazardous
conditions, could not be accessed to test for methane, and could not be maintained or repaired.
Urosek explained that MSHA could not approve these changes because, if made, they would violate
themandatorystandardsat30C.F.R. § 75.364(b)(4), 30C.F.R. § 75.364(c)(3), 30C.F.R. § 75.337(a)
and 30C.F.:R. § 75.336(aj(I)(II). 4
30 C.F.R. § 75.364(b)(4) provides as follows:
Hazardous conditions. At least every 7 days, an examination for hazardous conditions at the
· following locations shall be made by a certified person designated by the operator: ... (4) at
each seal along return and bleeder air courses and at each seal along intake air courses not
examined under§ 75.360(b)(5).

§ 75.364(c)(3) provides as follows:
Measurements and tests. Atleast every 7 days a certified person shall-... (3 }test for methane
in the return entry nearest each set of seals immediately after the air passes the seals.
30 C.F.R. §. 75.337(a) provides that "[t]he mine operator shall maintain and repair seals to
protect miners from hazards ofsealed areas."
The Secretary maintains that the language · of the referenced standards is plain and
unambiguous and should be enforced as written. I have no difficulty in agreeing with the Secretary
3

In order to better expedite these proceedings Mr. Urosek's directtestimony, as well as
that of other experts in this case, was presented in written form before trial (Govt. Exh. No. 28).
4

The Secretary, upon subsequent receipt of additional information from JWR,
acknowledged at hearings that the latter standard would not be violated by implementation of the
Plan Supplement.
·
31 FMSHRC 934

and find that indeed the plain language ofSections.75.337(a), 75.364(b)(4), and 75.364(c)(3) must
be enforced as written and requires that JWR regularly examine, milntain and repair the proposed
seals as well as perform the required methane tests. JWR acknowledges that, as the active longwall
in its No. 7 Mine begins to mine, the proposed seals will not be accessible. It will therefore no~ be
able to examine the seals for hazardous conditions, gain access to test for methane, maintain the
seals, and, if structural defects are discovered, replace the seals. In sum, under its Plan Supplement~
JWR would not be able to comply with the seal· standards. The Plan Supplement, therefore, is not
"suitable" under Section .75.370(a){l), Consequently, the conditional approval of the Plan
Supplement was properly rescinded by the MSHA district manager.
It is a cardinal rule of construction, that if a regulation's meaning is plain, the regulation
cannotbe construed to mean something different from that plain meaning. Exportal Ltda. v. United
States, 902.F.2d 45, 50 (D.C. Cir. 1990); Pfizer; Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. C~.
1984) (citing Udall v. Tallman, 380 U.S. 1, 16 {1965))..When the language of a provision is plain,
the plain language is the meaning of the provision and the sole function of the courts is to enforce
the language as written. Hartford Underwriters Ins. Co. v. Union Planters }Jank, N.Na, 530 U.S. 1,
6 (2002). The Commission has also held that, where, as here, "the meaning of a standard is clear
based on its plain language,jt follows that the standard provides the operator with adequate notice
ofits requirements." Jim Walter Resources, 28 FMSHRC 579, 595 (August 2006); LaFarge Constr.
Materials, et.al. 20FMSHRG1140, 1144(October1998).
·
Moreover, no language in the standards at issue sets forth or even suggests any exception to
the requirements that seals be examined for hazardous conditions, that seals be maintained and
repaired; and that the return entry nearest each set of seals be tested for methane. As a result, the
standards cannot be read as containing such an exception. See Thunder Basin Coal Co v. F'MSHRC,
56 F .3d 1275, 1280 (l ot1t Cir. 1995). Ifthe Secretary intended to exempt the seals that JWR proposed
in its Plan Supplement from the requirements ofSections·75.337(a), 75.364(b)(4) and 75.364(c)(3),
these sections could have so provided. See Russello v. United States, 464 U.S. 16, 23 (1983).
Contestant, while professing to also argue that the plain langm1ge of the standards should
prevail, in actuality has devoted the great bulk of its .case in attempting, fuOOUgh extrinsic evidence,
to create ambiguities where none.exist. 5 By then citing this extrinsic evidence, Contestant claims that
it is not receiving fair notice. of what is required by the stan~ds at issue. This argument is, of
course, the equivalent of a classic "strawman" argument and Cfil1. not withstand close scrutiny. In any
event, while I am certainly sympathetic with Contestant's understandable prior corifusion
engendered.by the Secretary's prior inconsistent enforcement of Section 75.364, I cannot find that
Contestant has now. failed to have received fair notice of what is required by the standards at issue.
Since this proceeding involves only a challenge to the .disapproval of a ventilation plan pursuant to
procedures set forth in MSHA's Program Policy Manual, it is not in the same posture as a typical
enforcement proceeding under the Act. Unlike enforcement proceedings where punitive penalty.

5

The Contestant had also earlier claimed that the Secretary failed to negotiate in good
faith but specifically withdrew that claim at hearings.

31 FMSHRC 935

sanctions are imposed and where the question ofwhether fair notice has been provided regarding the
application of a mandatory standard may be a relevant issue, in these proceedings the Secretary is
actually providing clear advance notice ofhow the mandatory standards are now, and will be, applied
in the future. Such notice has not only been provided by the plain· meaning of the language of
Sections 7 5 .364 and 7 5 .337 (a) but also by the issuance of the letter of disapproval on December 16,
2008, by the issuance of the citation at bar on May 1, 2009, by these proceedings and reconfirmed
by the testimony of the Secretary's designee, Mr. Urosek. Under the circumstances JWR cannot
claim in this case that it has not received fair notice before any punitive enforcement action has been
taken. See Akzo Noble Salt, Inc. at 1304-1305. 6
While apparently acknowledging that the language of Section 75.364 does indeed prohibit
it from using internal seals, JWR nevertheless argues, in effect, that by issuing a memorandum in
1993 (Gov't Exh. No. 25) effectively waiving enforcement of 75 .364 at its No: 7 Mine, the Secretary
is barred or estopped from changing that policy. As explained by Mr. Urosek, the mining disasters
of2006 prompted the Secretary to more strictly enforce· the provisions of section 75.364. A lack of
prior enforcement does not, in any event, constitute a defense to a violation and does not estop the
govemmentfroni prosecuting the violation.· Emery Mining Corp. v. Secretary 744 F;Zd 1411, 1416
(10th Cir. 1984); U.S. Steel Mining Co., 15 FMSHRC 1541, 1546-47 (August 1993); Nolichuckey
Sand Co., 22 FMSHRC 1057; 1063-64 (September 2000). As previously n:oted, moreover~ this is
not an actual enforcement proceeding and JWR has now been given, prior to any actual enforcement
action, clear notice of the Secretary's change in policy to a strict enforcement of Section 75.364. For
all the above reasons the Contestant's·argument must in any event be rejected.
I also have not disregarded JwR's assertion that Section 337(a) is ambiguous based on
language in the preainble to the Secretary's Final Rules published in 2008. However it is well
established law that language in a preamble cannot create an ambiguity where none exists in the plain
language. See Pfizer Inc. v. Heckler, 735 F.2d at 1509 ("Where the enacting or operative parts.of
a statute are unambiguous, the meaning of the statute· cannot be controlled by· language in the
preamble") Association of American Railroads v. Castle, 562 F.2d 1310, 1316 (D.C. Cir. 1977);
Alber'marle Corp. v. Herman, 221 F.3d 782, 786 (51h Cir. 2000) "The preamble need be consulted
only when, unlike here, the regulation'·s plain language is ambiguous");Jogi v. Voges, 480 F.3d 822,
834 (7th Cir. 2007) ("It is a mistake to allow general language of a preamble to create an ambiguity
in specific statutory or treaty text where none exists. ·Courts should look to materials like preambles
and titles only if the text of the instrument is ambiguous").
It is also noted that, in any event, the Secretary's authorized decision maker, Mr. Urosek,
testified that what JWR calls an "exception" to the Final Rules appearing in the preamble applies
only to "spontaneous combustion" mines and explained at trial why that language only applies to

As the Secretary noted at hearings, the proper forum for JWR's dispute her~in is under
a Petition for Modification proceeding pursuant to Section lOl(c) of the Act. Under such a
proceeding, JWR would have the opportunity to prove that its alternative to compliance with the
standards at issue herein would be just as safe as compliance with these standards.
6

31 FMSHRC936

such mines. It is undisputed that the No. 7 Mine is not a "spontaneous combustion" mine. Urosek
explained that mines that are susceptible to spontaneous combustion. are provided an exception
because such mines must comply with other rules that afford miners the same protection from
hazards (Gov't Exh. No. 28).
JWR also argues that MSHA intended to depart from its practice of only exempting seals in
"spontaneous combustion" mines from the maintenance, examination, and. testing requirements.
JWR points out that MSHA;s 2007 Procedure Instruction' Letter (PIL) contained language that
exempted seals in spontaneous combustion mines from the maintenance, examination, .and testing
requirements, whereas the 2008 PIL omits this language. As Mr. Urosek explained, however, the
omission of this phrase did not indicate a change in the interpretation of75.337(a) to recognize the
blan.ket exception to the maint.enance. and r~pair of seals which JWR .seeks to impose on MSHA.
(Gov't Exhs. No. 28 and 15). Further, where a new version of a standard eliminates a provision in
a previous version, such elimination does not establish a new intent, especially where, as here, the
result is simply silence on the matter. See US v. Wilson 290 F.3d 347, 360 (D.C. Cir 2002), cert.
denied, 537 U.S. 1028 (2002).
In any event, directives contained in agency materials such as instruction manuals,
memoranda, opinion letters~-and enforcement guidelines are not entitled to deference where, as here,
the interpretation or policy statement cannot be squared with the plain language of mandatory
standards. Christensen et al. v. Harris County, et al. 529 U.S. 576 (2000); Brockv. Cathedral.Bluffs
Shale Oil Co. 796 F.2d 533, 538-39 (D.C. Cir.1986); Secretaryv. Utah Power and Light Company,
11 FMSHRC 1926 (October 1989).

Under all the circumstances, it is clear that JWR's proposed Plan Supplement, if
implemented, would be in violation of the standards at 30 C.F.R. §§ 75.364(b), 75.364(c)(3) and
75.337(a) and that the Secretary has therefore met her burden of proving that the Plan Supplement
is "unsuitable".

ORDER
Citation No. 7696888 is affirmed and Contest Proceeding Docket No. SE 2009-500-R is
hereby dismissed.

Gary Melick
;
Administrative Law Ju ge
202-434-9977

31FMSHRC937

Distribution: (Facsimile and Certified Mail)
David M. Smith, Esq.,Warren B. Lightfoot, Jr. Esq., and Christine Greene, Esq., Maynard, Cooper
& Gale, P.C., 1901 Sixth Ave. North, Suite 2400, Birmingham, AL 35203
Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
Uche Egemonye, Esq:, Office of the Solicitor, U.S. DepartmentofLabor, 61 Forsyth Street SW,
Room 7Tl0, Atlanta, GA 30303
.
.
.
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
/lh

31 FMSHRC 938

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001 ·2021
Telephone No.: 202-434-9980
Telecopier No.: 202-434-9949

August 7, 2009

MILESTONE MATERIALS,
Div. ofMATHY CONSTRUCTION
Contestant

CONTEST PROCEEDING
Docket No. LAKE 2009-432-RM
. Citation No. 6494042; 04/14/2008

v.
SECRETARY OF LABO~

MINE SAFETY AND HEALTH

Mine: Plant #66
Mine ID 47-03274

ADMINISTRATION {MSHA),
Respondent

DECISION
Appearances: Rafael Alvarez, U.S. Department of Labor, Chicago, Illinois, on behalf of the
Respondent
Adele L. Abrams, Esq., Office of Adele L. Abrams, P.C., Beltsville, Maryland, on
behalf of the Contestant
Before:

Judge Barbour

In this proceeding, Milestone Materials, Division ofMathy Construction ("Milestone''),
challenges the validity of Citation No. 6494042, a citation that, as amended, alleges Milestone
violated 30 C.F.R. § 46.6(a), a mandatory training standard for newly-employed, experienced
miners. Milestone asserts the citation is invalid because the person alleged in the citation to lack
the required training is not a "miner'' as that word is defined in Part 46. The Secretary responds
that the citation is valid in all respects. The case was tried on June 24, 2009.
After the trial adjourned and the transcript was received, the parties advised me they had
resolved their differences. Counsel for the Secretary then filed a motion to dismiss, stating that
"[a]:fter reviewing the facts ... and in light of ... new information," Citation No. 6494042 has
been vacated. Motion to Dismiss 1. Milestone does not oppose the motion. Id.

31 FMSHRC 939

! · .. ·

ORDER
WHEREFORE, the citation at issue having been vacated, this proceeding is moot and IS
DISMISSED.

J)H/,(tf~
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th
Floor, Chicago, IL 60604
Adela L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

/ej

31 FMSHRC 940

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASIDNGTON, D.C. 20001

August 21, 2009
CIVIL PENALTY PROCEEDING.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

Docket No. SE 2008-130-M
A.C. No. 40-00170-13.2631

v.
EAST TENNESSEE ZINC COMPANY, LLC:
Respondent

Immel Mine

EAST TENNESSEE ZINC COMPANY, LLC:
Contestant

CONTEST PROCEEDINGS
Docket No. SE 2007-438-RM
Citation No. 7775339; 08/06/2007

v.
Docket No. SE 2007-439-:-RM
Citation No. 7775341; 08/06/2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSH!\),
Respondent

Immel Mine
Mine ID 40-00170

DECISION

P.

Appearances: Chiistian
Barner, .Esq~, Office of the SoliCitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;
·.
John Flood, Esq., Ogletree, Deakins, Nash Smoak & Stewart, P.C., Washington, DC,
on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon a petition for civil penalty (consolidated with related contest ·
proceedings) filed by the Secretary of Labor pµrsuant to section 105(d} of the Federal Mine Safety
and Health Act of1977, 30U~S.C. § 801 et seq., the"Act," charging East Tennessee Zinc Company,
LLC, (East Tennessee) with two violati()ns of mandatory standards and proposing civil penalties of
$3,806.00 for the violations. The general.issue before me is whether East Tennessee violated the
cited standards and, if so, what is the appropriate civil penalty to be assessed in acco~dance with
section l IO(i) of the Act. Additional specific issues are addressed as noted.
·
Citation Number 7775339alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 57.20001 and charges as follows:
.
31FMSHRC941

During an inspection of the topside of the 'big cage", located in the 1600 foot main shaft,
marijuana was discovered. The drug was located in the center of the cage in a cigarette
package. This site is a regular work area for contractor miners on both 12 hour shifts on
various days per week. A hazard of the miners working at this site under the influence of
marijuana could contribute to a serious injury or fatality. The confirmation ofthe marijuana
blunts was inade by the local sheriffs department drug laboratory~ The mine operator did not
ensure the contractor conducted. any type of drug testing while on this site since April of
2007. The mine operator did not review the contractors policies or procedures concerning
drug testing nor did they observe the employees to ensure they were in compliance with this
standard.
The cited standard provides in relevant part that"... narcotics shall not be permitted ... in
or around mines."
It is undisputed that, during the course of his accident investigation at the Immel Mine on
August 6, 2007, Inspector Thomas Galbreath of the Department of Labor's Mine Safety and Health
Administration (MSHA) found marijuana ''blunts" secreted in a cigarette package and hidden in an
obscure area of the "big cage" (an elevator located in the 1600-foot main shaft of the mine) where
employees of an independent contractor had been working.
While there is a legitimate dispute and a conflict among authorities as to whether marijuana
is a "narcotic", I find in this case that, in any event, Respondent had not "permitted" the substance
··
to be on its mine premises. 1 Accordingly there was no violation as charged.
It is well established, that where the language of a regulatory provision is clear, the terms
ofthat provision must be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd results. Dyer v. United
States, 832F.2d 1062, 1066 (9th Cir. 1987). See also UtahPower&Lighi Co., Ii FMSHRC1926,
1930 (October 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993).

The regulation at bar does not define the word "permitted". In the absence of an express
definition or an indication that the drafters intended a technical usage, the Commission has relied
on the ordinary meaning of the word to be construed Peabody Coal Co. 18 FMSHRC 686, 690
(May 1996), aff'd, 111F.3d963 (D.C. Cir. 1997) (table); Thompson Brothers Coal Co. 6 FMSHRC
2091, 2096 (September 1984). In this regard the Commission has utilized Webster's Third New
International Dictionary (Unabridged) as tb.e source of the · ordinary me'aning of words.
Accordingly, I look· to that source for the ordinary definition of the word "permit". "Permit" is
defined therein as ''to consent to expressly or formally', "grant leave for or the privilege of',"allow",
''tolerate", "to give (a person) leave", "authorize", ''to make possible"," to give an opportunity''.
Webster's Third New International Dictionary (Unabridged) 1683 (2002).
·
1

Respondent's stipulation at hearings that marijuana was a "narcotic" was subsequently ·
withdrawn with the consent of the Secretary.
·. · ·
·
·
31 FMSHRC 942

Accordingly, based on the ordinary definition of the term "permit", I find that the language
of the cited standard is clear and unambiguous and that it must be enforced as written. Since there
is no evidence in this case that Respondent acted in any of the enumerated ways and, indeed, since
the Secretary has acknowledged that Respondent did not actively permit marijuana to be in its mine
nor consent to, nor authorize, its presence, l find that there was no violation as Gharged2 • · .
In reaching this conclusion I have not disregarded the Secretary's proffer of an alleged.
"passive" definition of the word "permitted" and reference to two judicial decisions in purported
support of that proffer i.e. SEC v. Bolla, 401 F. Supp2d 43, 62-63 D. D.C. 2005) and National
Realty and Constr. Co., Inc. v. OSHRC,489F.2d1257, 1264 andn.27 (D.C. Cir. 1973). However,
these judicial interpretations 'Here necessarily derived from the. unique legal and factual
circumstances of those cases and Ca.ntlot be considered to be the "ordinary'~ definition of the word·
"permitted". Indeed, the Circuit Court in the latter case recognized that the word permission "usually
connotes knowing consent" and the usage of the word in a passive sense ''maybe loose."
Citation Number 7775341 alleges a violation of the standard at 30 C.F.R. § 48.3(t) and
·
·
charges as follows:
The operator did not have a copy of the MSHA approved training plan available at the mine
site for MSHA and for review by the miners and the representatives. A hazard of the
operator attempting to train onsite and not having the plan to. follow to assure the miners
receive the proper training exists. This hazard could cause a disabling injury. to .the .
employees. The operator. has a copy of the plan on file
the corporate office iocated .
approximately five miles from this mine. Hazard, site sp!!cific and refresher training are
·
done on this site at various times.

m.

The cited standard, 30 C.F.R. § 48.3(t), provides as relevant hereto, that "[t]he operator shall
make a copy of the MSHA approved training plan available at the mine site for MSHA inspection.

"
There is no dispute that on August 1, 2007, during the course of a multi-day investigation
into an accicient at the Immel Mine, MSHA Inspector Rick Boggs asked Respondent's safety
manager, Dennis Hillman, for a copy of East Tennessee's MSHA approved training plan. It is also
undisputed that Mr. Hillman told Inspector Boggs that a copy of the ~ubject plan was available at the
Respondent's Beaver Creek office. The office is located less than five miles from where the request
was made and is a part of the Immel Mine under the Ac;;t. The citation was then issued without
waiting for the plan to be produced.

2

In apparent recognition of the difficulties of etiforcing the current standard,. the .
Secretary has proposed new rules that would set forth precisely which substances are prohibited.
It would also place the onus of possession of banned substances on the miscreant miner and ·
''provide clear and actionable guidance for mine operators". 73 F.R.52136 (September 8, 2008).
31FMSHRC943

·Respondent maintains that since the Beaver Creek office is, under Section 3(h)(l )(c) of the
Act, part of the Immel Mine and that since it is undisputed that a copy of the subject training plan
was available at the Beaver creek office, there was no violation as charged. 3 The Secretary does not
disagree that the Beaver Creek office is, under the Ad, a part of the Immel Mine but argues that
since it has given the Beaver Creek office a Federal mine identification number different from that
given to the Immel Mine, the Beaver Creek office is not part of the Immel Mine "site" for purposes
of the cited standard.

a

East Tennessee responds by asserting that it was not provided fair notice of this definition
of "mine site" now advanced by the Secretary. Whether or not the Secretary's interpretation is
entitled to deference as a reasonable or permissible reading of her regulation, I agree that fair notice
of the Secretary's interpretation of the term "mine site" was not provided. 4 ·
Where an agency imposes a fine based on its interpretation, a separate inquiry may arise
concerning whether the respondent has received "fair notice" of the interpretation it was fined for
violating. Energy West Mining Co., 17FMSHRC 1313, 1317-18(August 1995). "[D]ueprocess.
. .prevents...deference from validating the application of a regulation that fails to give fair warning
of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir
1986). An agency's interpretatiorimay be "permissible" but nevertheless fail to provide the notice
required ilnder this principle of admiriistrative law to support imposition of a civil satiction. General
Elec., 53 F.3d at 1333-34. The Cominission has not required that the operator receive actual notice
of the Secretary's mterpretation. Instead, the Commission uses the.test of''whether a reasonably
prudent person familiar with the mining indilstry and the protective purposes of the standard would
haverecognized the specific prohibition or requirement of the standard." Idea/Cement Co., 12
FMSHRC 2409, 2416(November1990).

3

Section 3 of the Act provides in part as follows:

(h)(l} "coal or other mine" means (A) an area of land from which minerals are
extracted in nonliqilid form ... ·and (c) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures, facilities,
equipment, machines, tools, or other property including impoundments, retention
dams, and tailings ponds, on the surface or underground, used in, or to be
· used in,· or resulting from, the work of extracting such minerals from their
natural deposits in nonliquid form .... (Emphasis added).
4

Because the Secretary has also advocated different definitions of the term "mine site",
see e.g. Secretary v. National Cement Company of California Inc. et al. No. 08-1312, slip op at
16 (D.C. Cir. July 21, 2009), there are also serious questions as to whether this interpretation
represents the Secretary's "fair and considered" judgement and would, in any event, therefore
merit deference. SeeAkzoNoble Salt, Inc. et al. v. FMSHRC etal. 212 F.3d 1301, 1304 (D.C.
Cir. 2000).
31 FMSHRC 944

There is no. evidence that the Respondent herein or anyone in the mining comnmnity ever
received actual notice that the Secretary's arbitrary interpretation of the term "mine site" is limited
geographically to areas only within a single Federal mine identification number. I further find that
a reasonably prudent person familiar with the mining industry and the protective purposes of the
standard would. not have recognized the specific requirement that a copy of the training plan must
be made available other that at the "mine" as defined in the Act and, particular, wollld ~e based
on a mine identification number-: -a number which , in any event, does not provide any definitive
geographic boundaries. It is unreasonable to.anticipate, without prior notice, that the Secretary's
definition of''mine site" would differ from the definition of''mine" under the Act and be limited to
only areas with the same Federal identification number. Fair notice was not afforded in this case
and, accordingly, Citation No. 7775341 must be vacated.

m

Even assuming, arguendo, that fair notice had been provided and that the Beaver Creek office
is found not to be a part of the Immel Mine "site", I find that the copy of the training plan kept at the
mine office less than five miles away was "available" within the meaning of the cited standard. It
is first noted that the cited standard does not require that a copy of the plan be actually kept at the.
"mine site" but only that it be made available for inspection. Furthermore, there 1s no time set forth
in the standard within which the mine operator must make the plan available for inspection. The
time must therefore be "reasonable" under the circumstances. See Steele Branch Mining, 15
FMSHRC 597, 602 (April 1993).

The MSHA inspection group remained at the Immel Mine for several days after its request
for a copy of the plan and, since according to the undisputed testimony of MSHA Inspector
Galbreath, the need for a copy of the plan was only for purposes of comparison with the actual
training that was being performed at the mine, there was clearly no urgent need for a copy of the
plan. It may also reasonably be inferred that Respondent could have obtained a copy of the plan
within minutes of its request since it was located at the mine office less than five miles away. 5 I find
that it is therefore reasonable to infer that a copy of the plan was accordingly "available" within the
meaning of the cited standard.
The evidence is also uncontradicted that, when MSHA representatives first requested a copy
ofthe training plan, there was in fact a copy located at the ''mine site" as interpreted by the Secretary.
This copy of the plan was kept in the file cabinet of mine manager Steele's locked office. As a
condition precedent to enforcing this standard I find that it is incumbent upon MSHA representatives
to request the plan copy from the mine's authorized custodian of records or from the management
official then in charge of the mine. This is essential since only certain mine employees could be
expected to know the location of such documents. MSHA 's failure to make a proper request for a
5

In this regard, it is noted that under the Secretary's profferaj definition, .the training
plan for the Young .Mine would be "available" at the Young ''mine site" even though kept at the.
Beaver Creek office located 1.6 miles away, because they have the same Federal mine
·
identification number.
31 FMSHRC 945

copy of the training plan should, for this additional reason, also result in vacating the citation. 6

ORDER.
Citations Nurnber7775339 and 7775341 are vacated and this ci penalty proceeding is dismissed.
2007-439-Rareherebygranted.
The related contest proceedings, Dockets No SE 2007-438-R and

Distribution: (Certified Mail)
ChristianP. Barber, Esq., Office ofthe Solicitor, U.S. DepartmentofLabor, 618 Church Street, Suite
230; Nashvilie, TN 372}9-2456
John Flood, Esq., Ogletree, Deakins, Nash Smoak & Stewart, P.C., 2400 N Street, NW, 5th Floor,
Washington, DC 20037

/1h

6

It iS also noted that in termiriating the citation the Secretary stated that "the mine
operator now has a copy of the approved training plan on site for review by MSHA, miners and
representatives". Since it is undisputed that in fact there always had been a copy of the approved
training plan on site, nothing in fact had to be performed in order to abate the citation. · ·· ·
31 FMSHRC 946 .

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 / FAX: 202-434-9949

MACH MINING, LLC.,
Contestant

July 15, 2009
CONTEST PROCEEDINGS ·
Docket No. LAKE 2009-323-R
Citation No. 8414211; 02/12/.2009

SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION, (MSHA)
Respondent

Docket No. LAKE 2009-324-R
Citation No. 8414214; 02/12/2009
Mach#l Mine
Mine ID 11-03141

PARTIAL DECISION
Appearances: Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh &
Thomas, PLLC, Charleston, West Virginia, for the Contestant,
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois,· for the Respondent.
·
Before:

Judge Weisberger

I.

Introduction

These cases are before me based on Notices of Contest filed by Mach Mining, LLC
(''Mach") challenging the issuance of two citations alleging violations of the provisions of two
mandatory standatds1 relating to the requirement of providing escapeways; Pursuant to notice, a
hearing was held in St Louis, Missouri on May 14, 2009. After each party rested, the record was
kept open to allow for the possibility of any additional evidentiary hearing. The parties were
directed to file briefs addressing the limited issue of whether the cited area was a ''working
section", and thus triggering the requirements of escapeways.2 Each party subsequently filed a

1

Citation No. 8414211 alleges a violation of 30 C.F.R. § 75.380(d)(l) which requires that
escapeways be maintained in a safe condition. Citation No. 8414214 alleges a violation of30
C.F.R. § 75.364(b)(5), which requires an examination of an escapeway for hazardous conditions.
At the conclusion of the hearing held on May 14, 2009, the Secretary made a motion to amend
the citation by changing the alleged violative standard to 30 C.F.R. § 75.364(h), which requires
that a record be made of hazardous conditions found during weekly examinations. After the
parties argued the merits of the motion, it was granted.
2

Pursuant to 30 C.F.R. § 75.3.80(b)0), an operator is required to provide an escapeway
"for each working section." Thus, the existence of a working section is a predieate for the
31 FMSHRC 947

brief, and a reply.
The decision that• follows addresses only the issue of whether the cited area was. a
working section.

II.

Stipulations

At the hearing, the parties filed Joint Stipulations, which, as pertinent to the issue at bar,
are set forth as follows:

***
9.

On February 12, 2009, MSHA Inspector Bobby F. Jones conducted a regular
quarterly inspection of Mach #LMine, operated by Mach Mining, LLC. ["Mach"]

10.

While conducting his inspection, Mr. Jones inspected t4e primary escapeway to
the Headgate (hereinafter "HG") #4.
·

11.

The objects described in the body of Citation No. 8414211 extended l 00 to 120
feet of the primary escapeway in HG #4. There was an amount of water at the
intersection of crosscut #2. The objects described in the citC;ttion ended at the
stairs leading to the overcast at crosscut # 1. The width of the portion of the·
escapeway described in the aforementioned citation is 19 feet from rib to rib.

12.

In the escapeway, there was a lifeline.
.

.

13.

.

.

The lifeline in the HG#4 primary escapeway was continuous from the fan at the
surface of the mine to the loading point. The lifeline was present in the area cited
just outby crosscut #2 to crosscut #1 and ran through the regulator and up to the.·
. overcast.
.

.

14.

A lifeline is a line that the miners n:iay grasp to guide them through the primary.
escapeway to the surface of the mine in the event of an emergency evacuation.

15.

The lifeline is available forminers to use to guide them out of the mine, if
necessary.

16.

A lifeline is not fixed, but rather is flexible to allow movement of the miner.

17.

At the mouth of the escapeway, was a regulator.

imposition of all regulatory mandates relating to· escapeway8, including those set forth in
Sections 75.380(d)(l), and 75.364(h), the standards at issue in the case at bar.
· ··
31 FMSHRC 948 '

18. . . A regulator is a stopping (ie. a solid, concrete block wall) with a hole knocked out
of it for purposes of controlling air into the mine, ,
19.

. The regulator (or st()pping) was approximately 11" tall and stretched from rib to
rib, a distance of 19 feet.

20.

The hole knocked out of the stopping in order to create the regulator measured 4'
4" wide X 6' tall.

21.

The concrete blocks that made up the regulator measured 8" tall X ~ 6" wide X 6"
deep.

22. .

The regulator was created on or about Jan~ 6, 2009. Prior to its creation, it was
a stopping because there was no need for air inby
focation.

23.

In order to make it through .the escapeway, a miner must walk through the 4 '4"
wide X 6' tall hole in. the regulator.
·

24.

The regulator controls the amount and velocity of air going to the section in order
to comply with the approved ventilation control plan.

.

.

.

this

***
27.

Air blows through the regulator at 106,832 cubic feet of air per minute ("cfm").

28.

The fan that blows the air is at the surface of the mine.

29.

Further into the escapeway, there were concrete blocks on the ground outby the
regulator.

30.

The concrete blocks that lay on the ground outby the regulator were knocked out
of the stopping when a change in air ventilation was created.

31.

Outby the regulator was a pile of gob.

32.

In the primary escapeway, there lay a take-up track.

33.

A take-up track is a steel piece of equipment used in belt storage writs.

34.

There wei:e no items bet\veen the pullet of crib ties and the stairs to the overcast.

35.

Contestant began weekly examination of the primacy escapeway at HG #4 five
weeks prior to the issuance of the subject citations.

.

'

31 FMSHRC 949

.

.

36.

Contestant assigned Mine Exam¢er Dave Adams the ta5k of conducting the
weekly examinations at HG#4 from J anliary 8, 2009 through February 12, 2009.

37.

· The concrete blocks existed irlthe escapewayoutby the regulator since on or
about January 6, 2009 when the regulator was created through February 12, 2009
when the subject citations w~re issued.

38.

The pile of gob existed in the escapeway since on or about January 6, 2009 when
the regtilator was created through February 12, 2009 when the subject citations
were issued.

39.

The take-up track existed in the escapeway since on or about January 6, 2009
when the regulator was created through February 12, 2009 when the subject
citations were issued.

40.

The pallet of crib ties existed in the escapeway since on or about January 6, 2009
when the regulator was created through February 12, 2009 when the subject
citations were issued.

41.

Mine Examiner Adams last conducted a weekly exam of the priniary escapeway
prior to the issuance of Cit. No. 8414211 on or about February 9, 2009.

42.

The concrete blocks outby, pile of gob, take-up track, and pallet of crib ties were
present in the primacy escapeway at HG#4 since January 6, 2009 when the
regulator was created through February 12, 2009 when the subject citations were
issued.

43.

Mine Examiner Dave Adams did, in fact, conduct weekly examinations for
hazardous conditions at the primary escapeway at HG #4 from January 8, 2009
through February 12, 2009.

44.

Mine Examiner Dave Adams did not note nay haiardous conditions in the weekly
examination records for the primary escapeway at HG #4 during the period from
January 8, 2009 through February 12, 2009.

ill.

Mach's Case

Essentially it is Mach's position that HG #4 was· not a working section when cited by
Jones. According to Anthony Webb, Mach's mine manager, HG# 4 was producing coal from
January 9 through February 9, 2009. On February 9, 2001,· HG# 4·was idled, and power was
removed from the HG # 4 power center and the belt drive. The miners working on the section
were a.Ssigned to provide assistance to a crew that was setting up a longwall section
approximately one mile from HG# 4. Webb indicated that Mach intended that HG# 4 would
remain idled for a minimum of approximately four weeks. Production was resumed at HG #4
31 FMSHRC 950

about the first week of March 2009.
.

.

.

.

Webb explained that before production could be resumed in the cited area, Mach had to
return power to the belt drive, and make sure :the. area was safe. He indicated that on February
12, 2009, the crew working on moving the longwall would have used the Tailgate #1 escapeway,
which was "a distinct separation" from the primary escapeway at HG #4. (Tr.· 156) He opined
that had there been an emergency on February 12, 2009, the men would not have traversed the
cited area to get to the e&eapeway. Rather, ''the lifeline directs them to the shortest distance to
the capsule and the. lifefuie would prevent them from traveling towards Headgate 4 which would
actually take them further away from the escape capsule." (Tr. 159) Webb further stated that on
the date cited, HG #4 did not have a designated working face, or a designated loading point.
IV.

Discussion

Introduction
Section 317(f) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 877(f),
imposes a requirement of escapeways from each ''working section." Title 30, Code of Federal
Regulations,.reiterates this requirement (See 30 C.F.R. § 75.380(b)(l)), and.r~uires further that
the escapeways shall be maintaint:l4 in a safe condition to always assure passage. (See 30 C.F.R.
§ 380(d)(l)).
30 C.F.R. § 75.2 defines working section as follows: "all areas of the coal mine :from the
loading point ofthe section to and including the working faces." Working face is defined as "any
place in a coal mine in which work of extracting coal from its natural deposit in the earth is
performed during the mining cycle." Id.
In BethEnergy Mines, Inc., 11 FMSHRC 1445 (1989), an issue before the Commission
was whether the cited are'as were ''working sections,~· and thus subject to the requirement of
providing mandatory escapeways. The Commission set forth the following "chief' broad factors
as being among those suggested by the record before it as bearing on whether an area of a mine is
a ''working section:" "the hazards.associated with the work being done in the area (hazards); the
geographical components of the area (location); the physical components of the area and their
functional readiness (capability); and the development of the area with respect to the actual
production (timeliness)." 11 FMSHRC at 1453.
The Commission wenfon to elaborate as follows:
For example, the hazards associated with the work being done in the area include
the increa5ed dangers a8sociated with the ongoing activities in a section. As
acknowledged by counsel for the Secretary at oral argument, the activities associated with
rea.Sonably imminent coal production introduce increased hazards to the particular area of
the mine where production takes plaee. Oral Arg; Tr. at 12. It is the presence of the
increased hazards to min:ers attendant to actual or reasonably close coal production that ·
31 FMSHRC 951

form a pragmatic basis for the two escapeways requirement of section 75.1704. It is then
that methane is more likely to be released in larger quantities during extraction of coal at
the face. Also at this time, there may be an increase in the generation of suspended coal
dust, an increase in the possibility of sparking, and an increased possibility of exposure to
unsupported roof The geographical components of a working section, as delineated in
section 75.2(g)(3), are the existence of an identifiable face from which coal is or will be
extracted, as well as a section loading point. The physical components of an area and
their functional readiness relate to the presence of those mechanical mining components
integral to the method of extraction contemplated in the identified location. In this regard,
the presence of a functioning power center, a functional loading point connected to the
mine's main haulage system, and necessary roof support equipment (such as shields ·
where longwall mining is involved) are appropriate indicators of a section s capability.
On the other hand, the location of equipment that merely has to be trammed into position-such as a continuous mining machine, roof bolter or shuttle car--is not necessarily
dispositive of the "capability" of a section to extract coal. Timeliness is linked to
capability and refers to the imminence of production. We agree with the judge that while
actual production is not necessary, the term "working section" is inextricably linked to the
· term "working face" and that term, we conclude, implies coal production that is
reasonably close in time. Once production is reasonably close, mechanical and electrical
problems that temporarily interrupfthe otherWise established capability ofa sectionto
produce coal do not relieve the operator from compliance with the mandates of section ·
75.1704. Other relevant factors also include the status of the mine's operations at the time
of the alleged violation and anyevidence as to the operator's plan for establishing
unobstructed escapeways prior to the start of production aetivities;· See Oral Arg. Tr. at ·
23-24.

BethEnergy, 1I FMSHRC at 1453-54. 3
Further Findings and Discussion

I take cognizance of Webb's testimony that when HG#4was cited on February 12,2009,;
it had been idled since February 9, 2009~ and Maeh ''had planned" for it to remam idle for

3

The Commission, in affirming that the Judge's finding that the cited area was not a
working section, noted the following facts in the record: the cited areas were "in a state of shutdown," the lack of evidence that the company would have begun coal production with ··
escapeways in their "obstructed state," a loading point that was not functional because certain
equipment required to allow it to be functional had not yet been constructed, the power center
was "inoperable," mining did not resume until two months a:fter the MSHA inspection, the cited
area was ''not capable of coal extraction," a belt necessary in the mining operation had been
disassembled, only half of the required roof support had been installed, shears were in company
shops, and the conveyor had not been connected to any of the
mining equipment. 11 FMSHRC
-·
at 1454.
.

.

31 FMSHRC 952

approximately fourweeks. 4 However, there is not any evidence in the record th~t any equipment
had to be moved to HG ,#4, in order for prod:uction to be resumed, nor IS there any evidence that
any constructio~ or repairs were necessary for the reswnption of production. indeed, the . ·
following testimony by Webb is the only evidence· adduced by Mach as to what was necessary'in
order to resume production:
· ·
·
·
Q. What steps had to be taken.before .production could resume in Headgate f!4?

A. We had to put the power back into the section. We had to - .
JUDGE WEISBERGER: Just go slowly here'.
A. Okay. We had to put power on the belt drive. We had to make sure that the area was
safe. We did an exam where we are required to .carry that exam outside by the State of
Illinois, and then we were abl~ to reswne production. 5
· ·
·
{Tr. 154) (Emphasis added).

4

1 take cognizance of Webb's testimonythat, when the area in question was cited, the
section <lid npt have a designated working face for the section, nor was there a, designed loading
point for HG #4'. However, it is significant to note that HG #4 had been producing coal for a
month up until three days prior to the issuance of the citations at bar, whiqh, of necessity, would
have included operations at a working face and a loading point. Moreover, there is not any
evidence in the.record that the loading point had been removed or rendered incapable .of
functio$g afi:er production was suspended on February 9, 2009.
in this connection, Mach argues in its brief that there IS not any evidence that it would
have reswned production with the escapeway in the state it was found by Jones on February 12 ..
However, it is significant to note that Webb did not specifically indicate which of the
accumulated µ}ateriats. in the escapeway would have had to be removed in order to make the area
safe for production to reswne. Moreover, there is not any evidence that the presence of the
conditions observed by Jones had contributed to the shut-down of the section or delay in the
reswnption of production. indeed, I note that from January 6, 2009 through February 9, 2009,
Mach was actively producing coal in HG #4, in spite· of the. fact that concrete blocks outby the
regulator, gob, a take-ui> track, and a pallet of crib ties, existed in the escapeway during this
period.
·
·
.
5

Additionally, I note that Mach represented in its brief that it "contests the Secretary's
assertion that the presence of 2 to 8 inches of water, the 'gob' pile and the cinder blocks ·
constituted obstructions of the escapeways violative of30 C.F.R § 75.380(d)(l), ...."(Mach
Minmg's Post-Hearing Brief ["Mach's brief'], at 8). Thus, an inference may be made that
Mach's position is that these materials and oonditions do not constitute obstructions of such a
degree as to have rendered HG #4 incapable of resuming productions as a working section. ·
31 FMSHRC 953

Thus I firid;that resumption of coal production in HG#4 depended not upon removal of
physical obstructions, the return to the area of any equipment, or any repair or construction: Indeed, the cause for the idle state of HG #4 was a decision by Mach to remove the crew from
HG #4 in order to assign it to assist in the development of another longwall section.' Hence, the
resumption of production depended solely on a management decision to return ririners back to the
area, and to return power to it by turning on a switch. Under these circumstances, clearly the
return to production, with all its attendant hazards, for all intents and purposes; is to-be
considered imminent. Accordingly, I conclude that the situation at bar involved only a temporary
interruption by Mach of the established capability of the section to produce coal. As such, I find
that it was not incapable of functioning as a working section. Thus, I find that Mach should not
be relieved from its obligation to maintain a safe escapeway. 6
For all of the above reasons, I find that the facts in the case at bar are to be distinguished
from those presented in BethEnergy, 11 FMSHRC 1445 (1989). I further find, applying the
broad factors set forth in BethEnergy, that the cited area was a working section'. 7

ORDER
6

See BethEnergy, 11 FMSHRC at 1453-54 ("Once production is reasonably close,
mechanical and electrical problems that temporarily interrupt the otherwise established capability
of a section to produce coal do not relieve the operator from compliance with the mandates of
Section 75.1704 [which provide for two passageways to <:insure passage of any person iii.eluding --disabled persons froni each working section].)" (Emphasis added).
-7

1 take congnizance of Mach's assertion, in support ofits position that the cited area was
not a ''working section," that Jones admitted in "deposition testimony" that the area was not a
working section at the time he issued the citation at bar. (Mach's brief, at 3) However, I note
that at the hearing, Jones explained his deposition as follows:
Q. Earlier on you were talking about a working section. When you testified at deposition
·about this not being_ a working section, why did you consider it to have not been a working section ori the·ruiy that you cited_the escapeway?
A. - At the time I cited it, it was idle, but there was nothing to keep it, if another section_
broke down, say Headgate 3 broke down, there was nothing to prevent a crew from
another part of the mine going to that unit and in 15 minutes firing that unit up and
loading again.
(Tr. 126-27)
I observed Jones' demeanor and found his testimony credible on this point. Also, as set
forth above, the evidence in this de novo proceeding clearly establishes that the area was a
working section.

31 FMSHRC 954

It is Ordered that, no later that ten days after the issuance of this partial decision,
contestant shall convene a conference call. The agenda for the call is the status of the disposition
of all remaining issues posed by the two notices of contest at issue in these proceedings.

().~,, ~
~~eisberger

Administrative Law Judge

Distribution: (Certified Mail)
Christopher D. Pence, Esq~, and David J. Hardy, Esq., Allen, Guthrie; McHugh & Thomas,
PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Departnient of Labor, 230 S. Dearborn
St., 8th Floor, Chicago, IL 60604
·
/lp

31 FMSHRC 955

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

July 23' 2009
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 2008-939
A.C. No. 42-01715-145920-01
Docket No. WEST 2008-940
A.C. No. 42-01715-145920-02

V.

GENWAL RESOURCES, INC.,
Respondent

Crandall Canyon Mine

ORDER DENYING MOTION TO DISMISS
AMENDED PREHEARING ORDER
On July 16, 2008, the Secretary of Labor filed petitions for assessment of civil penalty in
these cases under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801, et seq. ("Mine Act"). She also filed a motion to file these petitions out of time. Genwal
Resources, Inc, filed its answer to the petition within 30 days. In its answer, Genwal opposed the
Secretary's motion to file the petitions for penalty out of time and asked that the cases be
dismissed on several grounds. The cases were assigned to me on March 19, 2009, without a
resolution of these issues. Genwal filed another motion to dismiss on June 29, 2009, and the
Secretary filed an opposition.
These cases involve.three citations issued under section 104(a) of the Mine Act, a citation
issued under section 104(d)(l) and an order issued under section 104(d)(2). The citations were
issued in July 2006 and the order was issued in July 2007. The total proposed penalty is
$11,080.00. In her motion to file the petitions for penalty late, the Secretary states that Genwal's
notice of contest of the proposed penalties was filed on April 30, 2008. Commissipn Procedural
Rule 28(a) required the Secretary to file the petitions for penalty within 45. days after Genwal
contested the penalties, which would be no later than June 16, 2008. 29 C.F.R. § 2700.28(a).
She attributes the late filing of her penalty petition to "an increased workload and administrative
oversight by the [MSHA] field office." She argues that the time limit in the Commission's rule
does not impose a jurisdictional limitation and that, because the Mine Act states that petitions for
penalty must be filed "within a reasonable time," the court should examine whether reasonable
cause existed for the Secretary's delay. A declaration of Price, Utah, Field Office Supervisor
William M. Taylor was submitted in support of her motion.
Genwal' s motion to dismiss raises a number of additional issues. It states that the cases
should be dismissed ''because the citations were written while the mine was under its previous
ownership and because of the extreme prejudice that has been created by the passage of time and
the events that have occurred since these citations were written on July 27, 2006." (Motion, p.
31 FMSHRC 956

1). The mine was purchased by its current owner on August 9, 2006. Genwal states that as part
of the purchase agreement, outstanding penalties and fines were addressed and the parties agreed
that the former owner would be responsible for all MSHA pe11a1ties that had not yet been
assessed during its period of ownership. In negotiating these terms, Genwal represents that
neither the current owner nor the fonner owner of the company could have foreseen that ''MSHA
penalties would take in excess of two (2).years to be assessed,· and therefore, extreme prejudice.
has,been created by the passing oftime." Id. 1-2. Genwal also maintains that the.infonnation
contained in the declaration ofMSHA's field office supervisor is not relevant because the
Secretary had "one full year to assess the penalties for the citations at issue prior to the
occurrence of the events referenced in the declaration...." Id. 2.
In addition, Genwal states that the citations were served on the company's safety director;
Jim Pruitt. Because Mr. Pruitt is now an MSHA inspector, .Genwal argues that it "will
undoubtedly face obstacles in attempting to interview Mr. Pruitt for discovery purposes ..•." Id.
2.

Section 105{a) of the Mine Act provides:
If, after an inspection or investigation, the Secretary issues a
citation or order under section 104, [she] shall, within a reasonable
time after termination ofsuch inspection or investigation, notify

the operator ... of the civil penalty proposed ....
(30 U.S.C. §815(a); emphasis added). This statutory provision requires the Secretary to propose
penalties within a reasonable period of time after a citation or order of withdrawal has been
terminated.
The Secretary states that Genwal contested the penalties on or about April 30, 2008.
Commission Procedural Rule 26, 29 C.F.R. §. 2700.26, provides that a mine operator must notify
the Secretary that it wishes to contest a proposed penalty assessment within 30 days of its receipt. .
Consequently, it can be estimated that Genwal received the Secretary~s proposed penalty
assessment on or about March 31, 2008. The citations at issue were terminated on or about
August 7, 2006. Thus,· it took the Secretary more than a year..and a half to propose penalti¢s for
these citations. The Commission's procedural rules do not set forth a time limit for the Secretary
to propose penalties. Rule 25 simply states that the Secretary "shall notify the operator ... of the ·
violation alleged [and] the amount of the proposed penalty assessment. ..." 2Q U.S.C. §
2700.25 ..
The record reveals that the Secretary filed her petition for assessment of penalty about 77
days after Genwal filed its notice of contest of the penalties. As stated ab9ve,- Commission .·

Procedural Rule 29 provides that the Secretary shall file her petition for assessment of penalty
within .45 days of receipt of a mine operator's contest of a proposed assessment.

31 FMSHRC 957

The declaration of Field Office Supervisor Taylor states thatthe field office was not able
to process and submit to the Office of the Solicitor the ''packets" necessary for the petition for ·
assessment of penalty until early July2008. He states that the Price, Utah, field office was
"diligently involved" irt providing information to investigative panels and the public following
the entrapment ofminers at the Crandall Canyon Mine starting in August 2007. All available
office personnel were involved in this effort. The declaration also states that, at about the same· ··
time, the number of penalty contests drastically increased both nationwide and in Utah. He states .
that the delay in processing Genwal 's penalty contest was not ''due to any dilatory intent on the .
part of the agency."
It is well settled that the Secretary's failure to meet time deadlines when filing penalty
proposals and petitions for assessment of penalty is not jurisdictional. The statutory processing
deadlines generally are intended to "spur the Secretary to action" rather than to confer rights on
litigants that limit the scope of the Secretary's authority. Sec'y ofLabor v. Twentymile Coal Co.,
411F.3d256, 261 (D.C. Cir. 2005).

The key events can be summarized as follows:
July 27, 2006
August 7, 2006
March 31, 2008
April 30, 2008
July 16, 2008
August 15, 2008

Citations issued
Citations terminated
Penalty proposed under Procedural Rule 25
Penalty contested by Genwal under Procedural Rule 26
Petition for Assessment Penalty filed under Procedural Rule 28
Answer filed by Genwal

There can be no dispute that the citations were issued about three years ago. Almost one ..
year of the delay in these cases can be attributed to this Commission. The Commission's
caseload increased significantly during this period. The Secretary's petition for assessment of
penalty was filed only about 30 days after the due date. The biggest delay was at the Price field
office and MSHA's Office of Assessments. Although the citations were terminated on August 7,
2006, the Secretary did notpropose penalties.until March 31, 2008. ·
Dismissal is a harsh remedy. · Genwal alleges that it has been prejudiced by this delay, but
it does not set forth any specifics. It argues that the length of time establishes prejudice. Genwal
also relies on the transfer of ownership of the company because neither party to the sale "could
have foreseen that MSHA penalties wouldtake in excess of two (2) years to be assessed."
(Motion, 1- 2). It is well established that the mere passage of time is not sufficient to establish
prejudice. Indeed, it often takes the Office of Assessments nine to twelve months to propose a
penalty. Section 105(a) of the Mine Act was written to encourage compliance with the
Secretary's safety and health standards rather than to create .an avenue for respondents to limit the
scope of the Secretary's authority. · Genwal admitted that arrangements were made in the
purchase agreement for the payment of outstanding penalties assessed for citations issued prior to ·

31 FMSHRC 958

the purchase date. ·Genwal knew that it had been issued the subject citations and that penalties.
had not yet been proposed.
The Senate committee that was instrumental in drafting the Mine Act specifically stated
in its report that the committee "does not expect that the failure to propose a penalty with
promptness shall vitiate any proposed penalty proceeding." S. Rep. No. 95-181, at 34 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History ofthe
Federal Mine Safety and Health Act of 1977, at 622 {1978). I accept the Secretary's explanation
for her delay and find that it was reasonable under the circumstances. Other administrative law
judges have reached similar conclusions in other cases. See, Wabash Mine Holding Co., 27
FMSHRC 672, 685-88 (October 2005) (15 month delay); Mountain Coal Co., 31 FMSHRC
_ _, No WEST 2909-189 (June 30, 2009) (2 year delay). 1

If these cases do not settle and Genwal is able to establish at a hearing that the delay
prejudiced its ability to offer evidence in its defense with respect to specific citations, then I will
consider whether an equitable remedy is appropriate. For the reasons set forth above, Genwal's
motion to dismiss these cases is DENIED and the Secretary's motion to file late petitions for the
assessment of civil penalty is GRANTED.
In order to encourage the parties to settle these cases, counsel for the Secretary shall
contact Respondent to discuss settlement. If a settlement is reached, a motion for its approval
shall be filed by the Secretary no later than August 19, 2009. If the parties are not able to settle
the cases, counsel for the Secretary shall, on or before August 20, 2009, initiate a conference call
with me to discuss the status of the cases and potential hearing dates.

"'
Richard . Manning
Administrative Law Judge
Distribution:
Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 (Fax and First Class Mail)

1

The issue raised concerning Mr. Pruitt is irrelevant. Mr. Pruitt could have taken a
position with MSHA even if there had not been a delay in proposing a penalty. There has been
no showing that Mr. Pruitt's departure will create any prejudice to Genwal.
31 FMSHR.C.959

Jason D. Witt, Esq., Assistant General Counsel, Coal Services Group, 56854 Pleasant Ridge
Road, Alledonia, OH 43902 (Fax and First Class Mail)
RWM·

31 FMSHRC 960

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980

July 24, 2009
DISCRIMINATION PROCEEDING

BlLLY BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

·

v.
PANTHER MINING, LLC,
Respondent

No.1 Mine
Mine ID.15-18198

BlLLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 2009-1225-D
BARB CD 2009-07

v.

PANTHER MlNING , LLC and
MARK D. SHELTON, Respondent

No. 1 Mine
Mine ID 16-18198
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
on behalf of BlLLY BRANNON,
Complainant,

Docket No. KENT 2009-1259-D
BARB CD 2009-09

··

v.
No.I Mine
Mine ID 15-18198

PANTHER MINING, LLC,
Respondent
.

.

.

ORDER GRANTING IN PART COMPLAINANT'S MOTION TO COMPEL
RULING ON MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY
RULING ON MOTION FOR CONTINUANCE OF TRIAL

AND

.

.

RULING ON MOTION TO CONSOLIDATE
I. THE MOTION T<fCOMPEL (DOCKET NO. KENT 200·J02-D)
The Complainant, Billy Brannon, has moved to compel the Respondent, Panther ·Mining,
LLC ("Panther Mining" or ''the company"), to respond to several interrogatories in the
Complainant's First Set of Interrogatories and to produce certairi document~ requested in
31 FMSHRC 961

Complainant's Fii"st Request for Production of Documents. According to Brannon, the company
either has objected to the.interrogatories and requests or provided incomplete information.

INTERROGATORIES, ANSWERS AND RULINGS 1

futerrogatory 5.. Please identify the person(s) who made the decision to transfer Brannon
from Cloverlick Coal to Panther Mining [on] February 8, 2008, and state the precise date that said
transfer was effectuated.
Answer: Rick Raleigh and Ross Kegan. March 3, 2008.
Complainant notes in his first set of interrogatories Brannon stated: "When an
interrogatory asks you to 'identify' a person, please state the person's name and job title, and their
last known mailing address, telephone number, and e-mail address." The Complainant states that
Panther provided Raleigh's job title and contact information in response to. another interrogatory,
but that it did not provide Kegan's job title and contact information. Complainant asserts he is
entitled to the information.
The company responds that it is providing Kegan' s job title and c~ntact information to the
Complainant. · ·
·

futerrogatozy 6. Please identify all of the employees, both management and hourly, who
were assigned to the 2nd shift at Panther Mining's No. 1 mine at any time during the period that
Brannon worked on said shift prior to his transfer to the day shift on or about June 26, 2008
(emphasis in original).
Answer: The Respondent objects to the interrogatory as overly broad and not relevant or
reasonably calculated to lead to the discovery of admissible evidence.

m

The Complainant argues that the interrogatory is n~t over1y broad, that any cinployee
who worked on the second shift at the mine might have information relevant to Brannon's claims.
It further argues it is not unduly burdensome, since the information sought is within the
knowledge and control of the company.
The company responds that the only protected activity.Branpon alleges while he worked
on the second shift is that he filed a civil suit based on an assault that occurred at the mine where

1

The allegedly incomplete or unanswered interrogatories and requests are numbered as in
·
the First Set offuterrogatories and First Request for Production of Documents. ·

31 FMSHRC 962.

he worked (the Cloyerlickmine) before he was transferred to Panther's mine. According to the
company, the other alleged protected activities occurred while the Complainant worked at the
Cloverlick mine or on the day shift.
·
The information sought by_the Complamant m,ust be disclosed. The iitterrogatory, while
broad, is not overly so. A mine is a confined environment in more ways than one, ·and second
shift miners may well have heard or s~en .things bearing on the Complainant's Claims.
.The company IS ORDERED. to provide the Complainant ~ith the infonnation reqµeste.j
in the interrogatory, and to.do so within 15 days of the date of this or~er.
.
·

c.

.
- .

Interrogatory 8. Please identify all of the employees, both management and hourly~ who
were assigned to the day shift at Panther Mining's No. 1 mine at any time during the period that
Brannon worked on ~aid shift through and including September 12, 2008 (empha8is in original).
Answer: Respondent.objects to this interrogatory as overly broad and not relevant or
reasonably calculated to lead to the discovery of admissible evidence.
.

.

For the smne reasons ~ stated above, the Complainant maintains the interrogatory is not .
overly broad. and is relevant.
·
The company contends Brannon already knows the nmnes of day shift employees with
infonnation relevantto his claims and. that he should not be allowed to use the Commission's
litigation .process to "shop for new cla,ims, gain information for , .. pending claims, or cause
unnecessary interference with [the company's] business or employees." ,Opposition to Motion to
Compel 5.
For essentially the smne reasons as stated with regard to Interrogatory 6, I agree with the·
Complainant that the infonnation requested in the interrogatory should be disclosed. The
company IS ORDERED ,to provide the Complainant with the information requested in the
interrogatory, and to do so within 15 days of the date of this order.

Interrogatory 11. Please state whether anyone from Panther Mining or Black Mountain
Resources investigated the allegations made in Brannon's complaint of discrimination after
Brannon filed Case No. BARB-CD-2008-07 with MSHA. If the answer is "yes," please identify
who conducted said investigation and identify every person to whom he spoke during the
investigation.
Answer: Yes, Rick Raleigh and Panther's counsel. Except as stated, Panther objects to
31 FMSHRC 963

as

this interrogatory calling for information that is protected from disclosure by the attorney-client .
privilege and/or work product doctrine.
The Complainant states he is not asking for copies of notes taken by Panther's counsel, but
that he is entitled to know to whom Rick Raleigh, the company's personnel director, spoke during
the investigation. · The Complainant asserts notes taken by Raleigh during his investigation are
much closer in time to the events forming the basis for the discrimination proceeding, and that the ·
Complainant cannot obtain their equivalent by any other means. The Complainant further notes
that in response to a motion to compel filed by the company, I ruled that copies of notes and logs
made by Brannon at the behest of his counsel should be made available to the Respondent,
provided appropriate redactions were made to protect the identity of miner witnesses and to
exclude material relating to the company's attorney's thought processes and litigation strategies.
Order 5 (May 29, 2009).
The company answer8 that Raleigh's notes were not contemporaneous with the events at
issue, but were made after the Complainant filed his complaint with MSHA and as part of the
company's "after the fact" investigation of the Complainant's charges. As such, they are
protected by the work product doctrine. Opposition to Motion to Compel 6-7.
While there is no gainsaying the fact that the information the Complainant seeks can be
viewed as coming within the work product doctrine, the doctrine is not sacrosanct and there are
times when it must must yield to more weighty concerns. fumy view, one such concern is the
paramount need for full or nearly full disclosure prior to trail. The need originally engendered the
federal rules governing discovery and in administrative proceedings such as this adherence to the
original purpose can help parties resolve their differences short of trial or, failing that, can greatly
enhance the likelihood of a just resolution. As I have noted elsewhere, it is for these reasons that
many administrative law judges, myself included, have little sympathy forclaims of privilege.
See Order 5 (May 29, 2008). Here, because the information could reasonably be expected to lead
to the discovery of relevant evidence, I hold that the names of the persons to whom Raleigh spoke
and Raleigh's notes of the conversations are discoverable;
The company IS ORDERED to provide the Complainantwith the information requested
in the interrogatory within 15 days of this order. Aiiy material in the information relating to the
company's attorney's thought processes and/or its attorney's litigation strategies must be redacted.

In,

Interrogatory 17.
8 of Panther Mining's Answer, the company alleges that ''there was
only one regular head drive operator whose drives were much further in the mine that those
assigned to complainant." Please identify said head drive operator;
Answer: Joe Yeary.

31 FMSHRC 964

The Complainant states the company did not provide Mr. Yeary' s .contact information.
The company agrees, and states it is sending the information to the Complainant.

Interrogatory 23. Please identify each and every person whom Panther Mining intends on
calling as a witness at the trial of this action, and provide a summary of the expected testimony of
each said person.
.

.

Answer: .Panther Mining has not determined who it intends to call as. a witness, but they
will probably include Mark Shelton [and nine others who are nanied] and may include some or all
of the following: Justin Adams [and seven others who are named].
·
The Complaint states that although Panther did not object to the interrogatory, it failed to
provide a summary of the expected testimony of each person. It notes that such summaries
routinely are required by Commission judges in their pr~-hearing orders and that the summaries
may indicate to the Complainant that deposition of a witness or witnesses is ~ecessary, thereby
saving the Complainant c<:msiderable expense.
The company asserts it presently intends to call 17 witnesses. It states it "should not be
required to summarize the testimony of so many witnesses covering so much detailed
information" and that any required responses should "be limited to general topics of expected
testimony[,] not fulldetails." Opposition to Motion to Compel 8.
Interrogatory 23 and the company's objection to it have been overtaken by events. Under
the April 20, 2009, Notice of Hearing as amended below, the parties are required to provide one
another with the names of their intended witnesses and with synopses of the witnesses' testimony
on or before January 26, 2010. Therefore; the company is under no obligation to do so now.
However, all of the parties are required to exchange the names and the synopses. While the
synopses must describe the subjects about which the witnesses will testify, they need not describe
the details of the expected testimony.
REQUESTS FOR PRODUCTION OF DOCUMENTS. RESPONSES. AND RULINGS

Request 1. A copy of the official mine map for :the Panther No, 1 mine ... that was in.
effect during September 2-12, 2008.
.

.

.

ReSJ>0nse:· See the attached map dated Novemb.er 19, 2008, document no. 000101 [i.e.,
Panther Mining "Bates-stamped" numbers on the documents it provided to the Complainant].

31 FMSHRC 965

The Complainant states that the company did not object to this request, but nonetheless did
not provide the map. Instead, it sent only the bottom, right-hand comer of the map.
The company responds that its failure to provide the Complainant with a complete copy of
the map was the result of a clerical error and that the requested copy has been sent.

Request 4. Copies of all statements given to [MSHA] by management personnel from
Panther Mining during MSHA's investigation of Brannon's discrimination complaint (Case No.
BARB-CD-2008~07), which preceded the filing of the instant Complaint of Discrimination with
[the Commission].
Response: See attached statements from Mark Shelton and Herschel [sic] Napier,
documents no. 000301-000309.
The Complainant asserts, based on information available to him, the company's section
foreman, Justin Adams, gave a statement to MSHA, and that a copy ofthe statement, which was
not included in the materials the company made available, shouldhave been provided.
The comapny states that it does not have a copy of Mr. Adams's statement.· Opposition to
Motion to Compel 8-1 L
For the reasons set forth with regard to Request 5, the Motion to Compel IS DENIED
with regard to Request 4.

Request 5. Copies of all statements given to MSHA by holirly employees from Panther
Mining during the agency's investigation of Brannon's discrimillation complaint (Case No.
BARB-CD-2008-07), in which management personnel from Panther or Black Mountain
Resources were allowed to sit in on said witness interviews.
Res.ponse: Panther has none.
The Complainant asserts that, in response to one of his interrogatories, the company stated
that Darrell Cohelia, the company's safety directory, sat in on the MSHA interviews of Jonathan
Whitehead, Shawn Daniels and Joe Yeary, each an hourly employee. It further states that Cohelia
and Rick Raleigh, the company's personnel director, sat in on the MSHA interview ofhou:dy
employee Jim Lamb. The Complainant argues that by allowing the company officials to sit in, the
hourly employees waived any claim of confidentiality they might otherwise have asserted.
Because the company knows what the employees told MSHA, Panther Mining should be required
to obtain the statements and produce them. The Complainant also describes his efforts to obtain

31 FMSHRC 966

the statements from MSHA via a FOIA request. Thus far, the effort has resulted in MSHA's
sending the Complainant copies o.f the requested statements, but with the names, job
classifications, signatures, addresses and social security numbers of the interviewed hourly
employees redacted. Tue Complainant describes the redacted statements as ''worthless." Motion

11.
The company again responds it does not have any of the statements the Complainant
seeks. Opposition to Motion to Compel 9-11.
The Complainant's motion to compel the company to produce the statements of
Whitehead, Daniels, Yeary and Lamb IS DENIED. The company states it has no such copies,
and I cannot order a party to produce something it does not have. The Complainant knows th~
names of the persons whose statements it wants. He can ask the persons. The Complainant· also
can and has followed an appropriate route for obtaining the statements by filing a FOIA request
with MSHA. This has resulted, as the Complainant admits, in his obtaining redacted copies of the
statements. If the Complainant is denied complete copies of the statements by those who were
interviewed, he can depose the miners and/or call them as wi~esses.

Request 7. Any employee handbooks, personnel policies or other compilations of Panther..
Mining's personnel rules or policies that were in effect during Brannon's employment with the
company prior to .September 12, 2008.
Res_ponse: The [company] objects to this request as vague and overbroad and not
calculated to lead to the discovery of admissible evidence. Without waiving this objection, see
the attached attendance policy and drug policy, documents no. 000501-000509.
The Complainant states there is nothing ''vague" or "overbroad" about its request and that
the company either has employee handbooks, et.c., or it does not. The Complainant wants the.·
company to identify and produce all such documents that exist, and if the company objects to
producing any of the specific docunients, the Complainant wants the company to lodge specific
objections.
The company states, if the Complainant needs the requested materials, he should
"[identify] the subjects of the policies he seeks so that [the company] and ... the [Administrative
Law Judge will] have some basis to assess their discoverability." Opposition to Motion to Compel
IQ
.
Employee handb_ooks and written personnel policies are discoverable, unless a sustainable
objection is.raised. Therefore, within 15 days of the date of this order, the company IS
ORDERED to identify for the Complainant the handbooks and wriµen personnel policies in
effect during the ~omplainant's employment and to provide the complainant with copies of the
31.FMSHRC 967

handbooks and policies in effect during the Complainant's employment. If such materials exist;
but the company has privileges to assert or other objections to raise, the company must seek a
protective order. hi its motion, the company should describe the material(s) with specificity and·
state its position(s) against disclosure. If the Complainant wishes to respond, he must do so
within five days of the date of his receipt of the company's motion.

Request 11. If anyone from Panther Mining or Black Mountain Resources investigated
Brannon's allegations after he filed his discrimination complaint (Case No. BARB-CD-2008-07)
with MSHA, copies of any and all interview notes and other documents compiled by said ·person
during his investigation.

as

Res.ponse: The [company] objects to this request, it calls for information that is
protected from disclosure by attorney-client privilege and/or the work product doctrine.
The Complaint reiterates the arguments he made with regard to Interrogatory 11, the
company reiterates its objections, and I reiterate my ruling. The company IS ORDERED to
provide the Complainant with the information requested within 15 days of this order. Any
material on the information relating to the company's attorney's thought processes and/or
.
litigation strategies must be redacted.

II. MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY
<DOCKET NO. KENT 2009-302-D)
III. MOTION FOR CONTINUANCE OF THE TRIAL
. (DOCKET NO. KENT 2009-302-D) ·
IV. MOTION FOR CONSOLIDATION OF'PROCEEDINGS
<DOCKETS NO. KENT 2009-302-D, KENT 20094225-D AND KENT 2009-1259-D)
Docket No. KENT 2009-302-D was assigned to me on March 6, 2009. On April 20, 2009,
I scheduled the case to be heard on August 11, 2009, in Barbourville, Kentucky. At the same
time, I ordered the Complainant to respond to the company's First Set of Interrogatories no later
than May 8, and I stated I expected counsels "to cooperate to ensure all discovery is ... completed
by July l 0, 2009." Order and Notice 1 (April 20, 2009). Thereafter, I ruled on the company~s
motion to overturn the Complainant's objections to written discovery requests and to compel
discovery (May 29, 2009). Now, I have before me the Complainant's motion to compel.
Obviously, July I 0 has come and gone, and discovery has not been completed, at least to
the satisfaction ofthe Complainant. The Complainant, therefore, moves for a 120-day extension
of time to complete discovery and· for a commensurate continuation of the trial date.
Complicating the matter is the fact that the Complainant has filed an additional discrimination
31 FMSHRC 968

complaint against the company (Billy Brannon v. Panther Mining, LLC and Mark D. Shelton,
Docket No~ KENT 2009,..1225,..D), and the Secretary of Labor has filed a discrimination complaint.·.
on the Complainant's behalf (Secretary ofLabor, on behalf ofBilly Brannon v. Panther Mining, .
LLC; Docket No. KENT 2009.,.1259-D). The company has movedto consolidate the two "new"
cases with the instant case.
As I noted when ruling on the Complainant's first motion to compel, judges, especially
administrative law judges, liberally construe discovery rules in order to provide parties with the
information needed at trial. Order 5 (May 29, 2009). However, there is no denying th~ fact that
unfettered discovery can consume a great deal of time.. As a result, there exists an inherent
tension between a judge's dutyto hear and decide a case promptly and his or her duty to further
discovery's ideal result, ensuring a party "see[s] many, .if not all, of his or her opponent's cards
before proceeding through the courthouse door." Id. The tension has become particularly acute
for the Commission's judges, who face an ever mounting backlog of cases and a potential
breakdown of the agency's ability to provide timely decision making.

The facts speak· for themselves. This month cases pending before the Commission will
surpass 13,000, an increase of 600% since the passage of the Miner Act. From fiscal year 2000 .
through fiscal year 2005, the-average number of cases filed per year was approx~tely2,300.
However, in fiscal year 2008, the number was approxiµiately 8,900, and, at the current rate, the
projected total backlog will be over 18,000 cases by the end of fiscal year 2010. Barring a large
increase in staffing - an increase that is not on the horizon - the keeping of trial dates becomes
vital if the Commission is to maintain even a semblance of timeliness in the decisional process.
,'

;.

The present motion for a continuance illustrates the problem. Docket No. KENT 2009302-D was given priority on my calendar because, in general, the nature of discrimination
complaints calls for their prompt resolution. In setting an August 11 trial date, I gave the case
precedence over other cases that had been pending far longer. Now, the next open date on my
trial calendar is March 2, 2010, and itis when the subject case will be heard. This seems an
inordinately long time to wait for a trial, e~ecially when the company is paying the Complainant
not to work. 2 Yet, discovery is ongoing in the instant case, and it may not have begun yet in .
KENT 2009-1225-D :wd KENT 2009-1259-D. In my opinion, the need for full or nearly full
disclosure prior to trial outweighs the economic and managerial inconvenience of a long delay.
Therefore, the Complainant's motion for a continuance IS GRANTED and the trial IS
RESCHEDULED to begin on MARCH 2, 2010. There is simply no more immediate date
available without "bumping" others. Having given the parties precedence once, I am not inclined
to do so again.
2

0n May 14, 2009,_Commission Administrative Law Judge Jacqueline Bulluck ordered
Brannon's temporary reinstatement (KENT 2009-988-D). The order was based on the parties'\
agreement that Bmnon would be economically reinstated pending a final ruling on a complaint of
discrimination the Secretary of Labor would file on Brannon's behalf. As discussed below, that
complaint, Docket No. KENT 2009-1259-D, is now before me.
31 FMSHRC 969

The parties' inability to meet the original discovery schedule and the resultant continuance
means in all likelihood August 11 is lost as a trial day to the Commission. Lost trial days have
adverse consequences forthe agency, because they mean an increase in the Commission's
burgeoning case backlog. For this reason, the parties are advised, as will be all appearing before
me hereafter, that the days of liberal continuances are over. I no longer will grant them, except
under the most dire of circumstances. The parties will meet the trial discovery schedule as
originally set and go to trial on the date(s) scheduled, or they will risk default.
Docket No. KENT 2009-302-D will be called for trial on March 2, 2010, in
Barbourville, Kentucky. The trial will commence at 8:30 a.m. In addition, counsel for the
company's motion to consolidate IS GRANTED, and Docket No. KENT 2009-1225 and KENT
2009-1255-DARE CONSOLIDATED WITH Docket No. KENT 2009.;302-D for hearing and
decision: The latter two cases will be called for hearing on March 2, 2010, with Docket No.
KENT 2009-302-D. I understand the Complainant's objections to consolidation, but, by
scheduling the testimony, the evidence relating to KENT 2009-1255-D can be identified and kept
fairly contiguous in the record. Further, if the need arises, attorney's fees issues can be sorted out
after the trial I have a duty to minimize disruption to the parties and their witnesses.
Consolidation of the cases _does that. I also have a duty to prevent even more delay in the cases
than has already occurred, and consolidation assists in that regard. While·the mechanics of
presiding over the consolidated cases may be complicated, with the assistance and coopeui.tion of .
the parties they can be mastered.
The parties are advised the requirements of the April 20, 2009, Notice of Hearing ARE ·
EXTENDED to Docket Nos. KENT 2009-1225-D and KENT 2009-1259-D, except that all
discovery must be completed by January 15, 2010. On or before January 26, 2010, the
Complainant and the Respondent will file their prehearing reports, including their witness lists
and testimony summaries.
Counsels· are reminded Commission Rule 10(c) requires the moving party to confer or
make reasonable efforts to confer with the other parties prior to filing a non-'dispositive motion
and to state in the motion if any other party opposes or does not oppose the motion. 29 C.F.R. §
2700.lO(c). Compliance with the rule is expected. Unless a statement indicating compliance is
included in future non-dispositive motions; the motions will not be accepted for filing and Will be
returned.

Administra~ve Law Judge

31 FMSHRC 970

Distribution: (Certified Mail)
Brian W. Dougherty, U.S. Department of Labor, Office of the Solictor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 41858
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212

/ej

31 FMSHRG971

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980

August 31, 2009
DISCRIMlNATION PROCEEDING

BILLY BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

v.

PANTHER MINING, LLC,
Respondent

No. 1 Mine
Mine ID 15-18198

BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant

v.

.PANTHER MINING , LLC and
MARK D. SHELTON,
Respondent

SECRETARY OF LABOR,
on behalf of BILLY BRANNON,
Complainant,

Docket No. KENT 2009-1225-D
BARB CD 2009-07

No. 1 Mine
Mine ID 15-18198

DISCRIMINATION PROCEEDING
Docket No. KENT 2009-1259-D
BARB CD 2009-09

v.
PANTHER MINING, LLC,
Respondent

No.1 Mine
Mine ID 15-18198

ORDER DENYING MOTION TO RECONSIDER DISCOVERY RULING
On July 24, 2009, I granted in part and denied in part Complainant's motion to compel
the Respondent to answer certain interrogatories and to produce certain documents. Order
Granting in Part and Denying in Part Complainant's Motion to Compel ("Order"). Among the
documents sought were "Copies of all statements given to [MSHA] by management personnel
... during MSHA's investigation of Brannon's discrimination complaint (Case No. BARB-CD2008-07), which preceded the filing to the instant Complaint of Discrimination with [the
Commission]" (i.e., Docket No. KENT 2009-302-D). Order 6. Also sought were "Copies of all
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statements given to MSHA by hourly employees [of the company] during the agency's
investigation of [the same] ... complaint . . . in which management personnel from Panther or
BlackMountain Resources [(Panther's parent company)] were allowed to sit in on ... [the]
interviews." Id. In his motion to compel, the Complainant described his efforts to obtain copies
of the statements from MSHA via a FOIA request. .The request resulted in the agency sending
the Complainant copies of the statements, but with the names, job classifications, signatures,
addresses and social security numbers of the interviewed employees redacted. The Complainant
described the redacted statements as ·~orthless." See Id. at 6-7. The company responded to the
request it provide the Complainant with complete copies by stating it has no such copies. Id. at
6.
In denying the Complainant's motion to compel production of the copies, I stated in part:

The company states it has no such copies, and I
cannot order a party tO produce something it does
not have. The Complainant knows the names of
the persons whose statements it wants. He can ~k
the persons. The Complainant also can and has
. followed an appropriate route for obtaining the
statements by filing a FOIA request with MSHA.
This has resulted, as the Complainant admits, in .
[his] obtaining redacted copies of the statements.
If the Complainant is denied complete copies ...
by those who were interviewed, he can depose
the miners and/or call them as witnesses.
Order at 7.
The Complainant now asks me to reconsider this ruling. He states the company's
section foreman, Justin Adams, gave a statement to MSHA and that although the company
claims it does not have a copy of the sta~ement, "clearly it can obtain that statement, whereas [the
Complainant] cannot." Mot. I. The Complainant wants me to require the company to instruct
Adams to get the company a copy of his statement and then to require the company to provide
that copy to the Complainant. Id.
The Complainant further states that although the company "may be telling the truth"
about not having copies of the statements of four of its hourly employees (Jonathan Whitehead,
Shawn Daniels, Joe Yeary and Jim Lamb), the company actually is saying that "it doesn't want
[the Complainant] to have copies of the statements, so it will not do anything- absent a court
order- to obtain [them]." Mot. 2, The Complainant adds that; because the er.npioyees allowed
company officials to attend their interviews, the employees obviously will be "adverse witnesses"
if they are called to testify, and that as a matter of "fundamental fairness" he needs the statements
to effectively examine and/or cross.examine the employees. Id. at 3.
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The company responds that the Complainant is merely repeating arguments that already
have been made· and rejected. The company notes that the Federal Rules of Civil Procedure .
sanction requests for documents ''which are in the possession, custody or control ofthe party .
upon whom the request is served" (Fed. R. Civ. P. 34), and that Rule 34 does not permit a court
to order a party to an action to force a person to acquire something the party does not have.
Response2.
The company's contention is not entirely accurate. Nor was I entirely accurate to state ...
that "I cannot order a party to produce something.it does not have." Order 7. There have been
situations in which the courts, acting under Rule 34, ordered parties to produce documents and
other items that were not in the parties' physical possession. However, in those situations the
parties objecting to producing the materials were held to have constructive control of the .
materials, a situation that is decidedly not the case here. In no sense is the company in
constructive control of the statements ofMessrs. Adams, Whitehead, Daniels, Yeary and Lamb.
When the individuals gave the statements to MSHAJ the individuals were acting on their own
behalf and at the behest of the agency. They were not acting fot the company. The company
does not have an ownership interest in the statements no matter how liberally "control" is
construed, and were I to order the company to instruct the employees to give it copies of the
statements, and were the employees to refuse; there would be no way for the Commission to
compel production. The order would essentially be unenforceable, and, as matter of sound
policy, the Commission should eschew unenforceable orders. In addition,.other valid policy
concerns relating to the effectiveness of the Secretary's investigations of alleged discrimination
militate against ordering production.
For all of these reasons, the Complainant's motion to reconsider the order IS DENIED.

_j)~·d~
David Barbour ·
Administrative Law Judge
Distribution:
Brian W. Dougherty, U.S. Department of Labor, Office of the Solictor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212
/ej
31 FMSHRC 974
G"D U.S. GOVERNMENT PRINTING OFFICE: 200~58174304