Secretary of Labor v. Kingwood Mining Company, LLC (Commission decision, October 7, 2016)

Plain-English summary

Kingwood Mining Company asked the Commission to reopen two penalty assessments that had already become final orders under section 105(a) of the Mine Act, which happens automatically when an operator does not contest an assessment in time. The Secretary of Labor did not oppose the request and in fact asked the Commission to grant it, because reopening was the step needed to let the parties settle the assessments. The Commission granted the motion and sent both dockets back to the Chief Administrative Law Judge for further proceedings under the Mine Act and the Commission's procedural rules. It directed the Secretary to file penalty petitions within 45 days under Commission Rule 28, and told the parties to file a motion to approve their settlement promptly after those petitions were filed. The order does not describe the underlying citations or explain why the original assessments went uncontested.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: Both final penalty assessments were reopened and the matter was remanded to the Chief Administrative Law Judge.
• Key point: An assessment that became final because it was not contested can still be reopened when the Secretary supports the motion and reopening is what allows the parties to settle.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)        

v.

KINGWOOD
MINING COMPANY, LLC

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Docket
No. WEVA 2009-857

A.C.
No. 46-08751-152739

Docket
No. WEVA 2009-1131

A.C.
No. 46-08751-159510

BEFORE:  Jordan,
Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On September 26, 2014, the Commission received from Kingwood Mining Company, LLC (“Kingwood”) a motion seeking to reopen two penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). Subsequently, the Secretary requested that the Commission grant the operator’s motion to reopen in order to facilitate settlement of the assessments.

Having reviewed movant’s motion to
reopen, we reopen this matter and remand it 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.

Consistent with Rule 28, the Secretary
shall file petitions for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. In order to effectuate the settlement identified as the basis of the unopposed motion to reopen, the parties should promptly file a motion to approve settlement after the Secretary files the petitions for assessment of penalty.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Robert
H. Beatty, Jr.

Lorna
M. Waddell

Dinsmore
& Shohl LLP

215
Don Knotts Blvd., Suite 310

Morgantown,
West Virginia 26501

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450