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.
BLUE DIAMOND COAL COMPANY, et al.[1] |
: : : : : : : : : : : : |
Docket Nos. KENT 2016-3 KENT 2016-4 KENT 2016-5 KENT 2016-6 LAKE 2016-9-M WEST 2016-6-M CENT 2015-625-M CENT 2016-7-M LAKE 2016-7-M VA 2016-7 WEST 2015-967 LAKE 2016-35 |
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). Between September 15 and October 14, 2015, the Commission received motions from the above-captioned operators seeking to reopen 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).
In each of these cases, the operators claim that they mailed timely notices of contest to the Arlington office of the Mine Safety and Health Administration (“MSHA”). The Secretary initially did not oppose reopening because of problems concerning mail delivery following the relocation of MSHA’s headquarters on July 15, 2015. However, on October 14, 2015, MSHA received a large volume of mail that had not been forwarded to MSHA’s new address. Included in this mail were the notices of contest for the above-captioned cases.
Having discovered that the operators had timely contested the proposed penalties, MSHA maintains that the contests were immediately processed and docketed in separate civil penalty proceedings. Based on these circumstances, the Secretary requests that the above-captioned dockets be dismissed as moot.
Having reviewed the requests to reopen and the Secretary’s response, we conclude that the proposed penalty assessments did not become final orders of the Commission because the operators timely contested the proposed assessments. Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty,
. . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, the operators notified the Secretary of the contests. This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure. Accordingly, the operators’ motions to reopen are moot, and these dockets are dismissed.
/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/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner
Distribution:
Billy R. Shelton, Esq.
Jones Walters, Turner, & Shelton PLLC
2452 Sir Barton Way, Suite 101
Lexington, KY 40509
Bruce Callender
Callender Construction Company, Inc.
928 West Washington St.
Pittsfield, IL 62363
Allan Atwell
Campbell Redi-Mix
1510 Cooper Dr.
Lake Havasu City, AZ 86403
Melvin Flannery
Flannery Construction, Inc.
P.O. Box 336
Cranson, WI 54520
Michael D. Clements
RDM Enterprises, Inc.
408 A Manor Dr.
Kingsport, TN 37660
Kevin Gates
Gates Construction, Inc.
608 Park Ave. East
Watford City, ND 58854
Dianna Mears Tassin
Mears Sand & Gravel
40 Mears Rd.
Denham Springs, LA 70706
Christopher G. Peterson, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
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 401
Arlington, VA 22202-5450
Exhibit 1
|
Operator |
Docket Number |
A.C. Number |
|
Blue Diamond Coal Company |
KENT 2016-3 |
15-19598-384070 |
|
Blue Diamond Coal Company |
KENT 2016-4 |
15-17478-384056 |
|
Blue Diamond Coal Company |
KENT 2016-5 |
15-17497-384057 |
|
Blue Diamond Coal Company |
KENT 2016-6 |
15-17497-384768 |
|
Callender Construction Company, Inc. |
LAKE 2016-9-M |
11-00214-385554 |
|
Campbell Redi-Mix |
WEST 2016-6-M |
02-03022-386154 |
|
Gates Construction Inc. |
CENT 2015-625-M |
32-01050-382708 |
|
Mears Sand & Gravel, LLC |
CENT 2016-7-M |
16-00883-382655 |
|
Mel Flannery Trucking |
LAKE 2016-7-M |
47-03029-384752 |
|
RDM Enterprises, Inc. |
VA 2016-7 |
44-06929-385047-S889 |
|
Signal Peak Energy, LLC |
WEST 2015-967 |
24-01950-384634 |
|
Triad Underground Mining, LLC |
LAKE 2016-35 |
12-02423-384766 |
[1] For the limited purpose of addressing these motions to reopen, we hereby consolidate docket numbers KENT 2016-3, KENT 2016-4, KENT 2016-5, KENT 2016-6, LAKE 2016-9-M, WEST 2016-6-M, CENT 2015-625-M, CENT 2016-7-M, LAKE 2016-7-M, VA 2016-7, WEST 2015-967, and LAKE 2016-35 involving similar procedural issues. 29 C.F.R. § 2700.12. For the sake of brevity, the relevant operator’s names, A.C. numbers, and associated docket numbers have been listed in Appendix A, attached to this order.