Oak Grove Resources LLC (Commission decision, February 7, 2011)

Plain-English summary

Oak Grove sought permission to file a renewed motion to reopen a final penalty assessment after the deadline set by the Commission. The Commission had denied its first request without prejudice and expressly required any renewed motion within 30 days. Oak Grove waited nearly 90 days. The Commission denied both permission for late filing and the renewed reopening request.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The motion to permit late filing and the renewed motion to reopen were denied.
• Key point: A party that receives an explicit deadline for renewing a reopening request must comply with that deadline.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 7, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

OAK GROVE RESOURCES LLC

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Docket No. SE 2009-812

A.C. No. 01-00851-183518

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 26, 2011, the Commission received from Oak Grove Resources LLC (“Oak Grove”) a motion by counsel to permit late filing of a renewed motion 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).

On October 28, 2010, the Commission denied without prejudice Oak Grove’s prior motion to reopen the subject penalty assessment. Oak Grove Res., LLC, 32 FMSHRC 1253, 1254 (Oct. 2010). The Commission instructed that, if Oak Grove sought reopening again, “it must do so within 30 days.” Id. Oak Grove waited nearly 90 days to bring its renewed motion to reopen, contrary to the Commission’s explicit instruction.

Because Oak Grove failed to timely file its second motion to reopen for failing to file a timely contest of the penalty assessment, we deny the motion to permit late filing and deny the motion to reopen the penalty assessment.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center

Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

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

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