FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

October 1, 2012

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., 25^th 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