FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20004-1710

Telephone: (202) 434-9950

Fax: (202) 434-9954

July 2, 2013

ORDER GRANTING SECRETARY’S MOTION TO COMPEL

            This case is before me on a Notice of Contest filed under Section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2000) (“the Act”) and is stayed pending the assessment of proposed penalties. On May 21, 2013, the Secretary of Labor filed a Motion to Compel the Contestant to provide complete, verified answers and responses to the Secretary’s First Set of Interrogatories and First Requests for Production and to make certain persons available for deposition. In the alternative, the Secretary requested that I dismiss the contest proceedings with prejudice for failure to cooperate in discovery, pursuant to 29 C.F.R. § 2700.59.

            The Contestant submitted its Response in Opposition to the Secretary’s Motion on May 31, 2013. Contestant states that it is not refusing to engage in discovery, that it provided responses to the Secretary’s Requests for Admissions, and has also provided the Secretary with its position statement to engage in informal settlement negotiations. Contestant stated that it has engaged in discovery but was seeking assurances that no 110(c) investigations would arise from the orders. Contestant further submits that the Secretary’s motion is a pretext to challenge an operator’s right to file pre-penalty notices of contest. Contestant cites the Commission’s decision in Marfork Coal Company, Inc., 29 FMSHRC 626 (August 2007) and an ALJ order applying Marfork, for the proposition that section 105(d) provides operators with a right to contest a citation or order and that initiating discovery and informal negotiations are valid reasons for bringing a 105(d) contest proceeding. Consequently, Contestant also submits that the Secretary should be compelled to engage in informal settlement negotiations.

            The Secretary requested a conference call on these issues, which was held on June 18, 2013. This Order memorializes my oral orders issued during the conference call.

            As a preliminary matter, pursuant to 29 CFR. § 2700.56(d), I note that parties may initiate discovery after an answer to a notice of contest is filed, even if the case is stayed pending the assessment of proposed penalties. In addition, Marfolk clarified that section 105 permits operators to file citations and orders before the related penalties are proposed, even without the need for immediate review. 

            During the conference call, the solicitor reiterated that there are no open or pending 110(c) investigations but he could not stipulate that there would not be one in the future, if facts came to light that would create the necessity for a future investigation. I concurred with the solicitor’s position and verbally ordered Contestant to provide the requested responses four weeks from the date of the conference call, in order to allow Contestant time to locate and consult with outside counsel for the miners.

            Accordingly, the Secretary’s Motion to Compel is GRANTED. Contestant is ordered to provide discovery responses four weeks from the date of the conference call that was held on June 18, 2013. As the Secretary has agreed to engage in settlement discussions following receipt of the discovery responses, I decline to address Contestant’s argument on this issue.           

                                                                                    /s/ Robert J. Lesnick

                                                                                    Robert J. Lesnick

                                                                                    Chief Administrative Law Judge

Distribution:

Lorna M. Waddell, Esq. Dinsmore & Sholl, LLP, 215 Don Knotts Boulevard, Suite 310, Morgantown, WV 26501.

Matthew N. Babington, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22^nd Floor, Arlington, VA 22209-2247

/kla