Pocahontas Coal Company, et al.

Plain-English summary

The Commission had consolidated multiple cases for interlocutory review after judges accepted penalty petitions that the Secretary filed beyond the 45-day deadline. A newly issued Commission decision clarified that adequate cause exists when the Secretary gives a supported, nonfrivolous explanation showing the delay was not capricious, willful, intentional, or in bad faith. Once that showing is made, the operator must demonstrate actual prejudice from the delay rather than possible or inherent prejudice. The Commission vacated interlocutory review and remanded the cases so the operators could renew their dismissal motions under that standard.

Decision snapshot

• Cited rules: 29 C.F.R. §§ 2700.28(a) and 2700.76
• Outcome: Interlocutory review was vacated and the consolidated late-petition cases were remanded.
• Key point: A supported, nonfrivolous explanation can establish adequate cause for a late penalty petition, after which dismissal requires actual prejudice to the operator.

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

October 1, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

POCAHONTAS COAL COMPANY, et al. 

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Docket Nos. WEVA 2011-227, et al.

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These cases, which were consolidated for purposes of interlocutory review by the
Commission, involve civil penalty proceedings arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). On March 15, 2012, the
Commission issued an order directing for interlocutory review those dockets listed in Appendix
A to the order. Each of those dockets was subject to the order that Chief Judge Lesnick had
issued on January 25, 2012, in Docket No. WEVA 2011-227. That order denied the operator’s
motion to dismiss and accepted the Secretary’s late-filed petition for assessment of penalty in
each of the subject cases, and was subsequently certified for interlocutory review by the Chief
Judge. In directing review pursuant to Rule 76, 29 C.F.R. § 2700.76, we stayed briefing pending
further order of the Commission.

The Chief Judge’s original order was based on the Commission’s decision in Salt Lake
County Road Department, 3 FMSHRC 1714 (July 1981) (“Salt Lake”). Recently, the
Commission issued a decision in Long Branch Energy, 34 FMSHRC ____, Nos. WEVA 2009-1492-R, et al. (Aug. 30, 2012) (“Long Branch”).

There, we clarified Salt Lake with regard to
the circumstances under which the Commission’s judges should accept or reject a penalty

petition that has been filed by the Secretary beyond the 45-day time limit imposed by Rule 28(a),
29 C.F.R. § 2700.28(a). Specifically, we held in Long Branch that while

the Secretary may not, on a “mere caprice,” ignore the
Commission’s procedural rule regarding deadlines for filing
penalty petitions . . . . , regardless of how important procedural
regularity may be, it is subservient to the substantive purpose of the
Mine Act in protecting miners’ health and safety. . . . We therefore
must balance concerns for procedural regularity against the severe
impact of a dismissal on the Mine Act’s penalty scheme.

In order to achieve this balance, we clarify that “adequate
cause” may be found to exist where the Secretary provides a non-frivolous explanation for the delay. The Secretary’s excuse may
not be facially implausible, and should be supported by evidence
sufficient to establish that the delay did not result from “mere
caprice” or through willful delay, intentional misconduct, or bad
faith. . . .

Once the Secretary meets her burden in this regard, an
operator must show at least some actual prejudice arising from the
delay in order to secure a dismissal of a penalty proceeding due to
a late-filed petition. Mere allegations of potential prejudice or
inherent prejudice should be rejected.

Long Branch, 34 FMSHRC at ____, slip op. at 8.

In light of the Long Branch decision, we hereby vacate our order directing interlocutory
review of the consolidated cases and remand the cases to the Chief Judge for further proceedings
under the Mine Act. In each of the cases the operator will have the opportunity, should it wish,

to renew its motion to dismiss. The Chief Judge or the judge subsequently assigned to the case
should then apply our decision in Long Branch.

/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

Robert H. Beatty, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

Michael T. Cimino, Esq.

Jackson Kelly, PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

Vincent J. Barbera, Esq.

Barbera, Clapper, Beener, Rullo & Melvin, LLC

146 West Main Street

P.O. Box 775

Somerset, PA 15501-0775

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center

401 Liberty Avenue, Suite 1340

Pittsburgh, PA 15222

Eric L. Silkwood, Esq.

David J. Hardy, Esq.

Christopher D. Pence, Esq.

Allen Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

Jonathan R. Ellis, Esq.

Steptoe & Johnson, PLLC

P.O. Box 1588

Charleston, WV 25326

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Alan Paez

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004-1710

Administrative Law Judge Kenneth Andrews

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

875 Greentree Road

7 Parkway Center, Suite 290

Pittsburgh, PA 15220 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004-1710