January 2013 TABLE OF CONTENTS COMMISSION DECISIONS AND ORDERS 01-03-2013 OHIO COUNTY COAL COMPANY, KENT 2012-652 Page 1 LLC 01-03-2013 RIVER VIEW COAL, LLC KENT 2012-654 Page 5 01-03-2013 BILLINGTON CONTRACTING, INC. LAKE 2010-81-M Page 8 01-14-2013 ARGUS ENERGY WV, LLC WEVA 2013-422 Page 11 01-31-2013 DENNIS S. BELL and MICHAEL P. PENN 2013-86-M Page 14 DUFFY Employed by DUFFY, INC. 01-31-2013 DOMINION COAL CORPORATION VA 2010-304 Page 18 01-31-2013 RIVERTON INVESTMENT WEVA 2012-1406-M Page 22 CORPORATION 01-31-2013 INMAN ENERGY WEVA 2012-768 Page 26 ADMINISTRATIVE LAW JUDGE DECISIONS 01-04-2013 ALLIED STONE, LLC LAKE 2011-47-M Page 31 01-08-2013 SIERRA ROCK PRODUCTS, INC WEST 2010-1390-RM Page 49 01-10-2013 SEC. OF LABOR O/B/O WAYNE WEVA 2013-322-D Page 70 BRAGG V. MAPLE COAL COMPANY 01-14-2013 BEVERLY MATERIALS, LLC LAKE 2011-876-M Page 88 01-14-2013 SEC. OF LABOR O/B/O RUSSELL WEVA 2013-368-D Page 101 RATLIFF V. COBRA NATURAL RESOURCES, LLC 01-15-2013 RONALD SAND & GRAVEL WEST 2010-1761-M Page 120 01-16-2013 DICKENSON-RUSSELL COAL VA 2009-393-R Page 123 COMPANY, LLC 01-18-2013 HOPKINS COUNTY COAL, LLC, KENT 2010-975 Page 134 i 01-22-2013 PREMIER ELKHORN COAL CO. KENT 2011-827 Page 150 01-23-2013 TRIPPLE H COAL, LLC SE 2010-78 Page 165 01-23-2013 FREEPORT MCMORAN MORENCI, WEST 2011-1003-M Page 172 INC. 01-28-2013 HIGHLAND MINING COMPANY, LLC KENT 2009-1241 Page 183 01-29-2013 CARMEUSE LIME & STONE, INC. KENT 2010-228-M Page 207 01-30-2013 HIGHLAND MINING COMPANY, LLC KENT 2011-97 Page 221 ADMINISTRATIVE LAW JUDGE ORDERS 01-02-2013 DYNO NOBEL EAST-CENTRAL SE 2012-260M Page 265 REGION 01-07-2013 BUCKINGHAM COAL COMPANY LAKE 2011-1041 Page 269 01-09-2013 TODD DESCUTNER V. NEWMONT WEST 2011-523-DM Page 275 USA 01-29-2013 SEC. OF LABOR O/B/O REUBEN KENT 2013-362-D Page 284 SHEMWELL V. ARMSTRONG COAL CO., INC. & ARMSTRONG FABRICATORS, INC. ii Review was granted in the following cases during the month of January 2013: Secretary of Labor, MSHA v. Small Mine Development, Docket Nos. WEST 2011-1351-M, WEST 2011-1153-RM. (Judge Miller, December 11, 2012) Secretary of Labor, MSHA v. Hidden Splendor Resources, Inc., Docket Nos. WEST 2009-208, et al. (Judge Manning, December 20, 2012) Review was denied in the following cases during the month of January 2013: Secretary of Labor, MSHA v. Rock N Roll Coal Company, Docket No. WEVA 2011-1710. (Judge Steele, December 6, 2012) Secretary of Labor, MSHA v. Art Wilson Company, Docket No. WEST 2012-743-M. (Judge Miller, order issued December 7, 2012-not a final disposition) Secretary of Labor, MSHA v. Art Wilson Company, Docket No. WEST 2012-1164-M, WEST 2011-1216-M. (Judge Miller, order issued December 7, 2012- not a final disposition) iii COMMISSION DECISIONS AND ORDERS FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1331 PENNSYLVANIA AVENUE, NW, SUITE 520N WASHINGTON, D.C. 20004-1710 January 3, 2013 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : Docket No. KENT 2012-652 ADMINISTRATION (MSHA) : A.C. No. 15-17587-276338 : v. : Docket No. KENT 2012-656 : A.C. No. 15-17587-273440 OHIO COUNTY COAL COMPANY, LLC : BEFORE: Jordan, Chairman; Young and Nakamura, 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”). On March 2 and March 7, 2012, the Commission received from Ohio County Coal Company (“Ohio”) two motions seeking to reopen two 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).1 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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 1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate docket numbers KENT 2012-652 and KENT 2012-656, both captioned Ohio County Coal Company, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 35 FMSHRC Page 1 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). The record indicates that proposed assessment No. 000276338 was delivered on January 10, 2012, and became a final order of the Commission on February 9, 2012. Proposed assessment No. 000273440 was delivered on December 6, 2011, and became a final order of the Commission on January 5, 2012. Ohio asserts that its safety manager only received proposed assessment No. 000276338 on January 23, 2012, and proposed assessment No. 000273440 on December 21, 2011. Ohio states that it has been unable to determine what caused the failure to its internal mail delivery system. Ohio states that it only became aware of the delinquencies when it received MSHA delinquency notices, dated February 29, 2012 and January 27, 2012. The Secretary does not oppose the requests to reopen based solely on the fact that the penalty contests were mailed six and seven days, respectively, after becoming a final order. The Secretary also notes that MSHA received two payments for the uncontested penalties, by checks dated February 21 and January 20, 2012. The Secretary cautions that she may oppose future motions to reopen penalty assessments that are not contested in a timely manner. The Commission has made it clear that where a failure results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). We urge the operator to take all steps necessary to ensure that future penalty contests are timely filed. 35 FMSHRC Page 2 Having reviewed Ohio’s requests and the Secretary’s responses, in the interests of justice, we hereby reopen these matters 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, consistent with Rule 28, the Secretary shall file petitions for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. /s/ Mary Lu Jordan Mary Lu Jordan, Chair /s/Michael G. Young Michael G. Young, Commissioner /s/ Patrick K. Nakamura Patrick K. Nakamura, Commissioner 35 FMSHRC Page 3 Distribution: Jeffrey K. Phillips, Esq. Steptoe & Johnson, PLLC 1010 Monarch Street, Suite 250 Lexington, KY 40591-0810 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., 25th Floor, Arlington, VA 22209-3939 Chief Administrative Law Judge Robert J. Lesnick Federal Mine Safety & Health Review Commission 1331 Pennsylvania Avenue, N. W., Suite 520N Washington, D.C. 20004-1710 35 FMSHRC Page 4 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1331 PENNSYLVANIA AVENUE, NW, SUITE 520N WASHINGTON, D.C. 20004-1710 January 3, 2013 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : Docket No. KENT 2012-654 v. : A.C. No. 15-19374-275039 : RIVER VIEW COAL, LLC : BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners ORDER BY THE COMMISSION: This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On March 2, 2012, the Commission received from River View Coal, LLC (“River”) a motion seeking 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.