CHARLESTON, W.Va. — Unpaid federal mine safety penalties didn’t spring up suddenly on Gov. Jim Justice and his family.
Federal officials filed a $4,776,370 lawsuit Tuesday against 23 companies headed by Justice.
The lawsuit seeks payment on 2,297 citations that stacked up from 2014 to the present.
The filing describes repeated attempts to collect on the fines, coming to a head in federal court.
This is a familiar situation with Justice. Federal filings dating back to at least 2009 describe a similar pattern of his companies waiting until federal penalties are final and then attempting to challenge them.
Describing Justice’s companies, the U.S. Secretary of Labor wrote in 2009, “they all exhibit the same attitude toward penalty assessments — an attitude of carelessness, indifference, and outright evasion.”
In those instances, Justice wasn’t yet governor and the circumstances didn’t culminate with a federal lawsuit.
When asked by reporters about the lawsuit during a public appearance on Wednesday, part of Justice’s response was a familiar refrain: “At the end of the day, we’ll take care of our obligations. We always have and we always will.”
The federal court system will now play the biggest role in determining that.
It didn’t have to be.
Companies that face penalties may pay them. To do so, the address is U.S. Department of Labor/MSHA, P.O. Box 790390, St. Louis, MO 63179-0390.
The other option is contesting the penalty.
Starting that process is also relatively simple. Notify the Department of Labor by checking the citations or orders on the assessment form that you wish to dispute. Send the form back.
Justice’s companies did neither, according to the federal lawsuit.
“Defendants failed to pay the proposed penalties or notify MSHA that it contested the assessed civil penalties and request a hearing,” according to the lawsuit.
“Defendants were informed that the assessments would become a final order if they filed to contest the assessments,” the lawsuit stated, “and that the final order would be enforced under the provisions of the Mine Act.”
The various civil penalties became delinquent 30 days after the final order of the Federal Mine Safety and Health Review Commission. The commission is an independent agency that reviews any disputes of the federal Mine Act.
The separate Mine Safety and Health Administration then sent two demand letters to Justice’s companies, according to the lawsuit.
When that went nowhere after 100 days, MSHA forwarded the issue to the Department of Treasury for collection under the Fair Debt Practices Collection Act.
Treasury sent a written demand for each delinquent debt.
Treasury also tried some other means, including hiring third-party debt collectors and placing Justice’s businesses in the Treasury Offset Program.
“Despite these collection attempts by Treasury, Defendants still failed to pay the assessed penalty, and Treasury referred the debts to the Department of Justice for collection.”
Yet another written demand went out, Sept. 5, 2018, from the U.S. Attorney’s Office for the Western District of Virginia.
Each of these steps was described not only in the lawsuit but also in attached declarations by officials in MSHA and the Department of Treasury.
Contacted this week, a lawyer working on the case on behalf of Justice’s companies, Mike Carey, said the two sides had been working over the past several months to resolve the debt.
“The Justice family is disappointed the U.S. Attorney’s Office has decided to follow this route and file a lawsuit at this time,” Carey said.
After all those steps, the lawsuit hit the federal court system on Tuesday.
“It’s about time,” said Ellen Smith, former editor of Mine Safety and Health News.
Reaching this point is extraordinary, Smith said.
“It is a minority of mine operators who don’t pay the fines, and the majority do. Why should you have companies owned by a billionaire not have the systems in place to track and pay or challenge these citations and fines?
“There is not a level playing field. There are companies that invest in safety, they pay their fines, and they have to compete against a company that now has $4 million in unpaid fines. That is just not fair. That is not the American way.”
— MetroNews (@WVMetroNews) May 8, 2019
The same issues have arisen with Justice in the past.
In 2009, the Federal Mine Safety and Health Review Commission bundled cases involving 13 companies under Justice’s ownership. In each, the commission had been asked to reopen a penalty assessment that had already become final.
The total amount for those was $649,740, including the initial penalties plus interest, fees and costs.
Counting other cases, the total delinquencies at the time for mines controlled by Justice was $870,843.
Commissioners expressed concern that the companies sought relief from final orders only after receiving delinquency letters.
Several of the cases, even across different companies, “contained identical excuses.” Foremost was a faulty mail processing system.
The Secretary of Labor wrote in her own filing, “it has become clear over time that the operators in all of the cases are controlled by the same individual, James C. Justice” and that they “offer the same unpersuasive and unmeritorious excuses for failing to contest penalty assessments in a timely manner.”
The commission wound up agreeing to reopen five of the cases and denied reopening eight.
Of most of the cases, commissioners concluded, “We are still unable to discern a cogent explanation of why the failure to timely contest these penalties might constitute excusable neglect.”