Secretary of Labor v. Highland Mining Company (Commission decision, March 5, 2010)

Plain-English summary

Highland Mining had filed motions to reopen four penalty assessments that became final when they were not timely contested. The Commission had denied one motion with prejudice and allowed Highland 30 days to renew the other three with fuller explanations and measures to prevent future missed assessments. Highland's counsel reported that he did not receive the earlier Commission decision and learned of it nearly two months later. The Commission granted an extension and allowed 20 days from this order to file renewed reopening requests in the three remaining dockets.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Highland Mining received 20 additional days to renew three requests to reopen final penalty assessments.
• Key point: The Commission extended a renewal deadline after counsel reported that he had not received the prior decision.

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 5, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

HIGHLAND MINING COMPANY

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

Docket No. WEVA 2009-688

A.C. No. 46-08693-164121

Docket No. WEVA 2009-689

A.C. No. 46-08693-167069

Docket No. WEVA 2009-1037

A.C. No. 46-06558-169988

BEFORE: Jordan, Chairman; Duffy, 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”). During the course of over five months in 2008 and 2009, the Commission received from Highland Mining Company (“Highland”) motions by counsel to reopen four penalty assessments that had each become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

In Highland Mining Co., 31 FMSHRC
1313 (Nov. 2009), the Commission unanimously denied the first of the motions with prejudice, and a majority denied the remaining three motions without prejudice. That order stated that with respect to the three motions denied without prejudice:

Should Highland renew its reopening requests, it must do so within 30 days, and fully explain the circumstances in the three failures to timely contest the proposed assessments. It must also address what it has done to ensure that it does not misplace penalty assessments in the future and to ensure that it responds to them in a more timely manner, in order to avoid a repeat of the mistakes it outlined in its four motions.

Id. at 1316.

In a motion filed on February 3, 2010, counsel for Highland informed the Commission that he did not receive his service copy of the Commission’s decision, and consequently did not learn of the decision until nearly two months later. Highland requests “a reasonable extension of time to consider and renew its reopening requests” in the three dockets in which the Commission indicated that it would entertain renewed requests to reopen. The Secretary of Labor has not filed a response to Highland’s February 3 motion.

Having considered Highland’s motion, we grant its request for an extension of time. It shall have 20 days from the date of this order in which to file renewed requests to reopen in the three dockets.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner 

Distribution:

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Max L. Corley, III, Esq.

Dinsmore & Shohl, LLP

P. O. Box 11887

900 Lee Street, Suite 600

Charleston, WV 25339

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Deptartment 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