Dominion Coal Corporation

Plain-English summary

Dominion Coal defaulted in ten penalty cases after personnel changes and staffing shortages caused it to miss answer deadlines. The company also said the resulting default orders did not reach the correct employee. Its compliance coordinator took responsibility for the process, trained staff on routing mail, and began working with counsel on future filings. The Secretary did not oppose reopening for the limited purpose of considering settlement motions that she had already filed. The Commission vacated all ten defaults, remanded the cases, and ordered Dominion to answer within 30 days.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 823(d); 29 C.F.R. §§ 2700.1(b), 2700.69(b), and 2700.70(a)
• Outcome: Ten default orders were vacated, and the cases were remanded for further proceedings.
• Key point: Corrective mail-handling measures and pending settlement motions supported reopening a group of penalty defaults caused by staffing disruption.

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                   

September 14, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

DOMINION COAL CORPORATION 

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Docket No. VA 2010-305

A.C. No. 44-06499-214250

Docket No. VA 2010-306

A.C. No. 44-06718-214251

Docket No. VA 2010-307

A.C. No. 44-06748-214252

Docket No. VA 2010-308

A.C. No. 44-06759-214253

Docket No. VA 2010-309

A.C. No. 44-06839-214256

Docket No. VA 2011-169

A.C. No. 44-06499-241499

Docket No. VA 2011-170

A.C. No. 44-06718-241500

Docket No. VA 2011-171

A.C. No. 44-06748-241502

Docket No. VA 2011-172

A.C. No. 44-06759-241503

Docket No. VA 2011-295

A.C. No. 44-06759-246949

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 February 9, 2012, the Commission received from
Dominion Coal Corporation (“Dominion”) a motion seeking to reopen ten penalty assessment
proceedings and relieve it from the default orders entered against it.

On March 16, July 26, and July 29, 2011, Chief Administrative Law Judge Lesnick issued
ten Orders to Show Cause which by their terms became Default Orders if the operator did not file
an answer within 30 days. These Orders to Show Cause were issued in response to Dominion’s
failure to answer the Secretary’s May 24, 2010, February 18, 2011, and April 25, 2011 Petitions
for Assessment of Civil Penalty. The Commission did not receive Dominion’s answers within
30 days, so the default orders became effective on April 18, August 26, and August 29, 2011,
respectively.

Dominion asserts that it failed to file timely answers due to personnel changes and a
shortage of personnel. Moreover, Dominion states that the Default Orders were not received by
the correct person at the company. Dominion’s compliance coordinator maintains that he made
this issue his primary responsibility, trained employees regarding the importance of receiving and
routing mail, and began working with a law firm to timely file future motions. The Secretary
does not oppose the request to reopen for the limited purpose of allowing the submission of her
Motions to Approve Settlement, filed in December, 2011.

The judge’s jurisdiction in this matter terminated when the defaults occurred. 29 C.F.R.
§ 2700.69(b). 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) (“JWR”). 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 Dominion’s requests and the Secretary’s responses, in the interest of
justice, we hereby reopen these proceedings and vacate the Default Orders. Accordingly, these
cases are 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. Dominion shall file
Answers to the Show Cause Orders within 30 days of the date of this order.

/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:

Randy Taylor

Safety Representative

Dominion Coal Corp.

15498 Riverside Drive

Oakwood, VA 24631

[email protected]

Sherry Graley, Esq.

Allen Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

[email protected]

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