Secretary of Labor v. Double Bonus Coal Company, et al. (Commission decision, March 13, 2009)

Plain-English summary

The Commission consolidated 13 requests by related operators to reopen final penalty assessments after the Secretary opposed relief in one case and indicated that similar objections might follow in others. It gave the Secretary 10 days to file any amended responses across the cases. The operators then had 10 days to answer the allegations in detail, supported by affidavits, internal mail-handling information, and relevant documents. The Commission warned that an incomplete response could lead to denial with prejudice. It allowed the Secretary seven days to reply to the operators' submissions.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The cases were consolidated and a schedule was set for evidence and responses on the reopening requests.
• Key point: Operators seeking relief from repeated defaults had to provide detailed, sworn evidence about how they handled MSHA correspondence.

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

March 13, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DOUBLE BONUS COAL COMPANY,

DYNAMIC ENERGY, INC.,

FRONTIER COAL COMPANY,

BLUESTONE COAL CORPORATION,

JUSTICE HIGHWALL MINING, INC., and
PAY CAR MINING, INC.

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Docket No. WEVA 2008-879

A.C. No. 46-09020-123653

Docket No. WEVA 2008-880

A.C. No. 46-09020-130296

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

Docket No. WEVA 2008-1448

A.C. No. 46-09062-144939

Docket No. WEVA 2008-1357

A.C. No. 46-09227-145258

Docket No. WEVA 2008-1358

A.C. No. 46-08684-146783

Docket No. WEVA 2008-1661

A.C. No. 46-08684-150175

Docket No. WEVA 2008-1359

A.C. No. 46-09123-147164

Docket No. WEVA 2009-727

A.C. No. 46-09031-162833

Docket No. WEVA 2008-1563

A.C. No. 46-08884-148891

Docket No. WEVA 2009-812

A.C. No. 46-08884-170006

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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”). In each of the 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 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).

Shortly before separate orders in the cases were finalized, the Secretary filed an opposition in one of the cases (Pay Car Mining, Inc., Docket No. WEVA 2009-812), and indicated that she planned to file supplemental responses in many of the other cases, opposing the requested relief on the same or similar grounds as stated in her response in Docket No. WEVA 2009-812. The Commission takes the grounds for the Secretary’s opposition very seriously. Rather than address the Secretary’s change in position, in the interest of efficiently deciding multiple cases involving related operators, the Commission has decided to consolidate all of the cases

and issue the following order:

1. If the Secretary wishes to file an amended response regarding her position on reopening any of
   the above-captioned cases in addition to Docket No. WEVA 2009-812, she must do so simultaneously in those cases, and within 10 days of the issuance of this order. In any amended response, the Secretary can refer to and incorporate her response in Docket No. WEVA 2009-812.

2. The operators may file individual replies or a joint reply within 10 days of service of the
   Secretary’s amended response.

In so doing, the operators should address the Secretary’s
allegations in detail, and must file affidavits from the involved operator personnel, contractors, and any other person whose testimony may be needed to explain fully the reasons for and circumstances surrounding the defaults. The operators should describe the details of their various systems for dealing with correspondence from MSHA during the period covered by these cases. Copies of documents relevant to the operators’ explanation should also be included. Failure of an operator to completely respond to the Secretary could result in the Commission’s denying the operator’s request to reopen with prejudice.

3. If the Secretary chooses to respond to the operators’ replies, she shall do so within seven days
   of service of the replies.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

James F. Bowman

P.O. Box 99

Midway, WV 25878

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

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

Perry Ryder

Gen. Mngr.

Bluestone Coal Corp.

818 N. Eisenhower Dr.

Beckley, WV 25802

James C. Justice

Justice Highwall Mining, Inc.

818 N. Eisenhower Dr.

Beckley, WV 25801

Robert Cochran

Dynamic Energy, Inc.

818 N. Eisenhower Dr.

Beckley, WV 25801

Pay Car Mining, Inc.

Bottom Creek Road

Kimball, WV 24853

Kenny Lambert Sr.

President

Double Bonus Coal Company

Pinnacle Creek-Sulphur Branch Rd.

Pineville, WV 24874

Randall Lester

Supt.

Frontier Coal Co.

818 N. Eisenhower Dr.

Beckley, WV 25801