FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 30, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            On November 2, 2011, Lone Mountain Processing, Inc. (“Lone Mountain”) filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit, seeking review of the Commission’s October 11, 2011 Order in the above-captioned dockets. On that same day, Lone Mountain filed with the Commission its application to stay payment of penalties, or, in the alternative, to deposit payment into an escrow account pending a final appellate determination. The Secretary of Labor opposes the motion to stay payment, but does not oppose the alternative motion to deposit payment into an escrow account. For the reasons that follow, we deny Lone Mountain’s motion for a stay.

            On October 11, 2011, the Commission issued an order denying with prejudice Lone Mountain’s motion to reopen three penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(a). The Commission concluded that Lone Mountain had failed to establish good cause for reopening the proposed penalty assessments.

            The Lone Mountain motion for stay has been filed pursuant to Rule 18 of the Federal Rules of Appellate Procedure, which provides that “[a] petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.” Fed. R. App. P. 18(a)(1). Section 106(a)(1) of the Mine Act states that, upon appeal of a final decision of the Commission, the court of appeals shall have exclusive jurisdiction in the proceeding at such time as the record before the Commission is filed with the court. 30 U.S.C. § 816(a)(1). Because the record has not yet been filed, the Commission has jurisdiction to consider Lone Mountain’s motion. Sec’y on behalf of Smith v. The Helen Mining Co., 14 FMSHRC 1993, 1994 (Dec. 1992).

            In Sec’y on behalf of Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 1312 (Aug. 1987), the Commission held that a party seeking a stay must satisfy the factors set forth in Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958): (1) a likelihood that the party will prevail on the merits of its appeal; (2) irreparable harm to it if the stay is not granted; (3) no adverse effect on other interested parties; and (4) a showing that the stay is in the public interest.

            In support of its application, Lone Mountain asserts that it has a reasonable likelihood of prevailing on appeal, and that it will be irreparably harmed if the stay is not granted. In response, the Secretary states that Lone Mountain has failed to set forth legally adequate grounds for the extraordinary relief of a stay pending appeal, and notes that Lone Mountain’s willingness to deposit the payment into an escrow account negates any notion that it will suffer irreparable harm if it is deprived of the use of the penalty amount pending resolution of this litigation.

            Upon consideration of Lone Mountain’s application and the Secretary’s opposition, we conclude that Lone Mountain’s assertions do not satisfy the requirements for a stay. As to its likelihood of prevailing on appeal, Lone Mountain has failed to provide any new or compelling reasons that were not previously considered by this Commission and deemed deficient. Moreover, as the Secretary points out, Lone Mountain’s alternative application for depositing the payment into an interest-bearing escrow account undermines its claim of irreparable harm. Recoverable monetary loss “may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).

            Accordingly, we conclude that Lone Mountain has failed to establish adequate grounds for justifying a stay. The Commission does not ordinarily become involved in the Secretary’s penalty collection efforts, and does not see the need to do so here. The parties are free to negotiate an agreement regarding an escrow account and all corresponding conditions without the Commission’s involvement. Lone Mountain’s application is hereby denied in all respects.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy                                                                                   

  Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

&Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura                                                                                

Patrick K. Nakamura, Commissioner

Distribution:

Marco M. Rajkovich, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th 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