FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 13, 2009

 

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)


v.





DOUBLE BONUS COAL COMPANY,
DYNAMIC ENERGY, INC.,
FRONTIER COAL COMPANY,
BLUESTONE COAL CORPORATION,
JUSTICE HIGHWALL MINING, INC., and PAY CAR MINING, INC. 		:
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Docket No. WEVA 2008-879
A.C. No. 46-09020-123653

Docket No. WEVA 2008-880
A.C. No. 46-09020-130296

Docket No. WEVA 2008-1354
A.C. No. 46-09020-148893

Docket No. WEVA 2008-1355
A.C. No. 46-09020-145248

Docket No. WEVA 2008-1356
A.C. No. 46-09062-147434

Docket No. WEVA 2008-1448
A.C. No. 46-09062-144939

Docket No. WEVA 2008-1357
A.C. No. 46-09227-145258

Docket No. WEVA 2008-1358
A.C. No. 46-08684-146783

Docket No. WEVA 2008-1661
A.C. No. 46-08684-150175

Docket No. WEVA 2008-1359
A.C. No. 46-09123-147164

Docket No. WEVA 2009-727
A.C. No. 46-09031-162833

Docket No. WEVA 2008-1563
A.C. No. 46-08884-148891

Docket No. WEVA 2009-812
A.C. No. 46-08884-170006

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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. (2006) (“Mine Act”). In each of the captioned cases, the Commission received a request to reopen a penalty assessment that had become a final order 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).


            Shortly before separate orders in the cases were finalized, the Secretary filed an opposition in one of the cases (Pay Car Mining, Inc., Docket No. WEVA 2009-812), and indicated that she planned to file supplemental responses in many of the other cases, opposing the requested relief on the same or similar grounds as stated in her response in Docket No. WEVA 2009-812. The Commission takes the grounds for the Secretary’s opposition very seriously. Rather than address the Secretary’s change in position, in the interest of efficiently deciding multiple cases involving related operators, the Commission has decided to consolidate all of the cases Footnote and issue the following order:


1. If the Secretary wishes to file an amended response regarding her position on reopening any of the above-captioned cases in addition to Docket No. WEVA 2009-812, she must do so simultaneously in those cases, and within 10 days of the issuance of this order. In any amended response, the Secretary can refer to and incorporate her response in Docket No. WEVA 2009-812.


2. The operators may file individual replies or a joint reply within 10 days of service of the Secretary’s amended response. Footnote In so doing, the operators should address the Secretary’s allegations in detail, and must file affidavits from the involved operator personnel, contractors, and any other person whose testimony may be needed to explain fully the reasons for and circumstances surrounding the defaults. The operators should describe the details of their various systems for dealing with correspondence from MSHA during the period covered by these cases. Copies of documents relevant to the operators’ explanation should also be included. Failure of an operator to completely respond to the Secretary could result in the Commission’s denying the operator’s request to reopen with prejudice. Footnote


3. If the Secretary chooses to respond to the operators’ replies, she shall do so within seven days of service of the replies.




____________________________________

Michael F. Duffy, Chairman




____________________________________

Mary Lu Jordan, Commissioner




____________________________________

Michael G. Young, Commissioner




____________________________________

Robert F. Cohen, Jr., Commissioner



Distribution:


James F. Bowman

P.O. Box 99

Midway, WV 25878


Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247


W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296


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


Perry Ryder

Gen. Mngr.

Bluestone Coal Corp.

818 N. Eisenhower Dr.

Beckley, WV 25802


James C. Justice

Justice Highwall Mining, Inc.

818 N. Eisenhower Dr.

 Beckley, WV 25801


Robert Cochran

Dynamic Energy, Inc.

818 N. Eisenhower Dr.

Beckley, WV 25801


Pay Car Mining, Inc.

Bottom Creek Road

Kimball, WV 24853


Kenny Lambert Sr.

President

Double Bonus Coal Company

Pinnacle Creek-Sulphur Branch Rd.

Pineville, WV 24874


Randall Lester

Supt.

Frontier Coal Co.

818 N. Eisenhower Dr.

Beckley, WV 25801