RoxCoal, Inc.

Plain-English summary

RoxCoal paid two approved settlement amounts but said it never received the judge's payment orders and asked the Commission to remove added interest and collection charges. One docket had already been referred to the Treasury Department, while the other had been fully paid and closed. The Commission reopened PENN 2009-374 only to let MSHA recall the Treasury collection action. It denied the request in PENN 2009-49 as moot.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.70(a); 30 U.S.C. § 823(d)(1)
• Outcome: One docket was reopened for the limited purpose of recalling Treasury collection, and the other reopening request was denied as moot.
• Key point: The Commission may reopen a final settlement order narrowly to unwind collection activity after the agreed penalty has been paid.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 20, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

ROXCOAL, INC.

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Docket No. PENN 2009-374

A.C. No. 36-08645-175710

Docket No. PENN 2009-49

A.C. No. 36-08636-163009

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 5, 2012, the Commission received from RoxCoal,
Inc. (“RoxCoal”) two motions in cases in which Administrative Law Judge Janet Harner had
issued decisions approving settlement dated August 11 and October 19, 2011. In its motions,
RoxCoal asks the Commission to dismiss any interest or penalties erroneously accrued in these
dockets.

RoxCoal asserts that it did not receive the judge’s Orders to Pay and Decisions
Approving Settlement, dated August 11 and October 19, 2011. RoxCoal paid the settlement
amounts, but asks the Commission to dismiss any penalties accrued by the U.S. Department of
Treasury collection efforts.

The Secretary does not oppose the requests to reopen, but notes that the Decisions were
mailed to RoxCoal’s legal counsel’s address of record. The Secretary states that MSHA mailed
delinquency notices to RoxCoal on November 16, 2011 and February 6, 2012. Assessment Case
No. 000175710 (in Docket No. PENN 2009-374) was referred to Treasury for collection on
February 16, 2012, where additional administrative costs and collection fees were charged. The
Secretary notes that MSHA received two payments for the agreed upon settlement amounts, by
checks dated March 1 and 16, 2012. The Secretary also states that, in Docket No. PENN 2009-49, the motion to reopen should be dismissed as moot because the penalties have been paid and
the case closed.

Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s orders here have become final
decisions of the Commission.

In evaluating requests to reopen final 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”); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993).

Having reviewed RoxCoal’s requests and the Secretary’s responses, in the interests of
justice, we hereby reopen Docket No. PENN 2009-374 for the limited purpose of giving MSHA
the authority to recall any collection actions by the U.S. Department of Treasury. RoxCoal’s
motion in Docket No. PENN 2009-49 is denied as moot.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Vincent J. Barbera, Esq.

Barbera, Clapper, Beener, Rullo & Melvin, LLC

146 West Main Street

P.O. Box 775

Somerset, PA 15501-0775

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Janet Harner

Office of Administrative Law Judges

Federal Mine Safety & Health Review Commission

875 Greentree Road, Suite 290

Pittsburgh, PA 15220