FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
APOGEE COAL COMPANY, LLC, et al.[1] |
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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”). On March 23, 2016, the Commission received a joint motion seeking to reopen 56[2] penalty assessments issued to subsidiaries of Patriot Coal Corporation (“Patriot”) that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On or about May 12, 2015, Patriot filed for Chapter 11 bankruptcy in the U.S. District Court for the Eastern District of Virginia. Pursuant to the court-confirmed reorganization plan, Patriot was required to sell substantively all of its assets. For the vast majority of cases, Patriot contends that, due to the issues surrounding the bankruptcy and change in ownership, it was unable to timely contest penalties issued between the time that it declared bankruptcy and when it was able to transfer ownership of its mines. For other cases, Patriot claims that ongoing settlement negotiations made it unclear which penalties needed to be contested. The Secretary agrees that these cases should be reopened. [3]
Since the parties filed the joint motion to reopen, events have transpired that affect our consideration of the joint motion. Eastern Associated Coal, LLC, a subsidiary of Patriot, had a motion to reopen Case No. 000389549 (Docket No. WEVA 2016-61) pending before the Commission prior the filing of the joint motion. However, the joint motion also requested that this case be reopened. On April 5, 2016, the Commission granted Eastern Associated Coal’s motion and reopened the case, rendering the joint motion to reopen Docket No. WEVA 2016-308 moot.
Additionally, in an email dated April 12, 2016, the parties informed the Commission that Case No. 000402707 was not a final order at the time the joint motion was filed and that Midland Trail Energy subsequently filed a timely contest. The contest has since been docketed by the Commission as WEVA 2016-390. As the penalties in this case never became final orders of the Commission, the joint motion to reopen Docket No. WEVA 2016-339 is moot.
Having reviewed the joint motion, we conclude that the motion to reopen Docket Nos. WEVA 2016-308 and WEVA 2016-339 are moot. As for the remaining cases, we hereby reopen these matters[4] and remand them to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, the Secretary shall file petitions for assessment of penalty in each case within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
/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:
Michael T. Cimino, Esq.
Jackson Kelly PLLC
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Robert S. Wilson, Esq.
Regional Solicitor’s Office
U.S. Department of Labor
102 12th Street 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
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Operator |
Docket Number |
A.C. Number |
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Apogee Coal Company, LLC |
WEVA 2016-324 |
46-01368-393525 |
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Apogee Coal Company, LLC |
WEVA 2016-325 |
46-01368-395956 |
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Apogee Coal Company, LLC |
WEVA 2016-326 |
46-08939-400382 |
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Apogee Coal Company, LLC |
WEVA 2016-327 |
46-08939-398390 |
|
Brody Mining, LLC |
WEVA 2015-343 |
46-09086-398610 |
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Brody Mining, LLC |
WEVA 2016-344 |
46-09086-396167 |
|
Catenary Coal Company, LLC |
WEVA 2016-322 |
46-07178-394670 |
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Catenary Coal Company, LLC |
WEVA 2016-323 |
46-07178-392504 |
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Eastern Associated Coal, LLC |
WEVA 2016-303 |
46-01456-392345 |
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Eastern Associated Coal, LLC |
WEVA 2016-304 |
46-01456-401466 |
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Eastern Associated Coal, LLC |
WEVA 2016-305 |
46-01456-394895 |
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Eastern Associated Coal, LLC |
WEVA 2016-306 |
46-03135-394896 |
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Eastern Associated Coal, LLC |
WEVA 2016-307 |
46-03135-397257 |
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Eastern Associated Coal, LLC |
WEVA 2016-308 |
46-06448-389549 |
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Eastern Associated Coal, LLC |
WEVA 2016-309 |
46-09152-389555 |
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Eastern Associated Coal, LLC |
WEVA 2016-310 |
46-09152-392353 |
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Eastern Associated Coal, LLC |
WEVA 2016-311 |
46-09152-394901 |
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Eastern Associated Coal, LLC |
WEVA 2016-312 |
46-09152-397265 |
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Eastern Associated Coal, LLC |
WEVA 2016-313 |
46-09152-397265 |
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Eastern Associated Coal, LLC |
WEVA 2016-315 |
46-08610-397263 |
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Emerald Processing, LLC |
WEVA 2016-316 |
46-08759-393297 |
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Emerald Processing, LLC |
WEVA 2016-317 |
46-08759-398125 |
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Emerald Processing, LLC |
WEVA 2016-318 |
46-08993-398129 |
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Emerald Processing, LLC |
WEVA 2016-319 |
46-09258-393310 |
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Emerald Processing, LLC |
WEVA 2016-320 |
46-09258-398137 |
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Emerald Processing, LLC |
WEVA 2016-321 |
46-03085-398118 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-328 |
46-06618-390824 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-329 |
46-06618-393529 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-330 |
46-06618-398383 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-332 |
46-08637-393531 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-333 |
46-08637-390827 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-334 |
46-08637-400380 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-335 |
46-08637-398386 |
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Grand Eagle Mining, LLC |
KENT 2016-288 |
15-16231-393377 |
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Hobet Mining, LLC |
WEVA 2016-340 |
46-04670-393291 |
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Hobet Mining, LLC |
WEVA 2016-341 |
46-05398-393292 |
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Hobet Mining, LLC |
WEVA 2016-342 |
46-05398-398120 |
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Midland Trail Energy, LLC |
WEVA 2016-336 |
46-09297-393779 |
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Midland Trail Energy, LLC |
WEVA 2016-337 |
46-09297-396169 |
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Midland Trail Energy, LLC |
WEVA 2016-338 |
46-09297-398612 |
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Midland Trail Energy, LLC |
WEVA 2016-339 |
46-09297-402707 |
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Remington, LLC |
WEVA 2016-348 |
46-09230-396828 |
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Remington, LLC |
WEVA 2016-351 |
46-09230-394461 |
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Speed Mining, LLC |
WEVA 2016-282 |
46-05437-398121 |
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Speed Mining, LLC |
WEVA 2016-295 |
46-05437-402270 |
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Speed Mining, LLC |
WEVA 2016-296 |
46-05437-393293 |
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Speed Mining, LLC |
WEVA 2016-476 |
46-05437-406785 |
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Speed Mining, LLC |
WEVA 2016-297 |
46-09099-390556 |
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Speed Mining, LLC |
WEVA 2016-298 |
46-09099-393305 |
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Speed Mining, LLC |
WEVA 2016-299 |
46-09099-398132 |
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Speed Mining, LLC |
WEVA 2016-300 |
46-08571-393296 |
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Speed Mining, LLC |
WEVA 2016-301 |
46-08571-398124 |
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Thunderhill Coal Company |
WEVA 2016-302 |
46-08818-393301 |
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Wildcat Energy, LLC |
WEVA 2016-345 |
46-09427-398396 |
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Wildcat Energy, LLC |
WEVA 2016-346 |
46-09427-390835 |
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Wildcat Energy, LLC |
WEVA 2016-347 |
46-09427-393540 |
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Exhibit 2
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Eastern Associated Coal, LLC |
WEVA 2016-305 |
46-01456-394895 |
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Citation/ Order Nos.: |
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9084090 |
9084135 |
9084100 |
|
9084130 |
9084097 |
9084139 |
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9084092 |
9084098 |
9084101 |
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9084131 |
9084136 |
9084102 |
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9084093 |
9084137 |
9084140 |
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9084133 |
9084138 |
9084143 |
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9084134 |
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Gateway Eagle Coal Company, LLC |
WEVA 2016-332 |
46-08637-393531 |
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Citation/ Order Nos.: |
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9055817 |
9059323 |
9059325 |
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9055819 |
9009770 |
9059327 |
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9059321 |
9009771 |
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Remington, LLC |
WEVA 2016-351 |
46-09230-394461 |
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Citation/ Order Nos.: |
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9008107 |
9008112 |
9008116 |
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9008108 |
9008113 |
9008117 |
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9008109 |
9008115 |
9052207 |
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9008110 |
9054964 |
9052208 |
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9008111 |
9053404 |
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Speed Mining, LLC |
WEVA 2016-296 |
46-05437-393293 |
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Citation/ Order Nos.: |
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9052040 |
9055592 |
9056072 |
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9052044 |
9007911 |
9055595 |
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9052045 |
9055593 |
9056073 |
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9052046 |
9059120 |
9052327 |
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9055591 |
9059121 |
9055596 |
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[1] For the limited purpose of addressing these motions to reopen, we hereby consolidate docket numbers WEVA 2016-324, WEVA 2016-325, WEVA 2016-326, WEVA 2016-327, WEVA 2015-343, WEVA 2016-344, WEVA 2016-322, WEVA 2016-323, WEVA 2016-303, WEVA 2016-304, WEVA 2016-305, WEVA 2016-306, WEVA 2016-307, WEVA 2016-308, WEVA 2016-309, WEVA 2016-310, WEVA 2016-311, WEVA 2016-312, WEVA 2016-313, WEVA 2016-315, WEVA 2016-316, WEVA 2016-317, WEVA 2016-318, WEVA 2016-319, WEVA 2016-320, WEVA 2016-321, WEVA 2016-328, WEVA 2016-329, WEVA 2016-330, WEVA 2016-332, WEVA 2016-333, WEVA 2016-334, WEVA 2016-335, KENT 2016-288, WEVA 2016-340, WEVA 2016-341, WEVA 2016-342, WEVA 2016-336, WEVA 2016-337, WEVA 2016-338, WEVA 2016-339, WEVA 2016-348, WEVA 2016-351, WEVA 2016-282, WEVA 2016-295, WEVA 2016-296, WEVA 2016-297, WEVA 2016-298, WEVA 2016-299, WEVA 2016-300, WEVA 2016-301, WEVA 2016-302, WEVA 2016-345, WEVA 2016-346, WEVA 2016-476, and WEVA 2016-347 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 Exhibit 1, attached to this order.
[2] On June 16, 2016, the parties filed a joint motion to reopen an additional penalty assessment in addition to the 55 penalty assessments in their original motion.
[3] While it does not affect our consideration of the joint motion, we note that the parties have reached a proposed global settlement as to the all of the proposed penalties. In exchange for the Secretary accepting lower penalty amounts, Patriot has agreed that the Secretary will not be treated as a general unsecured creditor under the reorganization plan. Pursuant to 29 C.F.R.
§ 2700.31, approval of the proposed settlement will be subject to Commission review on remand.
[4] Subsequent to the filing of the joint motion, the parties informed the Commission that they only sought to reopen certain penalties associated with Case Nos. 000393531 (WEVA 2016-332), 000394461 (WEVA 2016-351), 000393293 (WEVA 2016-296), and 000394895 (WEVA 2016-305). Accordingly, we reopen those penalties specified in Exhibit 2, attached to this order.