Left Fork Mining Company, Inc.

Plain-English summary

Left Fork Mining sought reconsideration after the Commission denied reopening three final penalty assessments. Its original requests attributed the missed contests to inadvertence, mistake, or unknown reasons and did not explain why the company waited through delinquency notices until MSHA threatened enforcement and possible closure. On reconsideration, Left Fork supplied more detail about a clerical oversight and argued that earlier inaccurate delinquency notices made the later notices unreliable. The Commission held that reconsideration cannot be used to repeat an argument already considered or present supporting facts that were available when the original motions were filed, so it denied the petition.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.78; 30 U.S.C. § 815(a)
• Outcome: The petition for reconsideration of the denied reopening requests was denied.
• Key point: Reconsideration requires an overlooked matter, unavailable basis, or change in controlling law, not additional detail that could have been presented earlier.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND 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.

LEFT FORK MINING COMPANY, INC.

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Docket No. KENT 2008-1111

A.C. No. 15-12564-125861

Docket No. KENT 2008-1181

A.C. No. 15-12564-127886

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, Inc. (“Left Fork”) a letter and motions seeking to reopen three
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). 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.

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 would issue 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 if Left Fork should fail to abate the section 104(a) citation, it would
necessitate the issuance of a 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 reopen, Left
Fork’s counsel had stated that, upon receipt of the 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 Fork’s Brookside 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 assessment cards to MSHA as contested.”

On July 2, 2008, the Commission received 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 explain why, 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 faith.

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 or why a mistake occurred at the
Brookside office. It stated that 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.

On January 9, 2009, the Commission issued its denial of Left Fork’s requests, concluding
that Left Fork failed to make a showing of circumstances that warrant reopening. 31 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 grounds 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 relief after 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 not 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 of judgment. She contends that Left Fork identifies
no material factual or 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 deny 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 of the Paraclete v. Does, 204 F.3d
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 arguing that 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.

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 filed its motions to
reopen.

Accordingly, for these reasons, Left Fork’s petition for reconsideration is denied.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

Terry Nelson Jr., Safety Director

Left Fork Mining Company, Inc.

P.O. Box 405

Arjay, KY 40902

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