FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 31, 2013

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 February 24, March 2, and May 22, 2012, the Commission received from Inman Energy (“Inman”), Process Energy (“Process”), Spartan Mining Company, Inc. (“Spartan”), and Aracoma Coal Company (“Aracoma”) (collectively “the operators”) five motions seeking to reopen five 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). Alpha Natural Resources (“Alpha”) is the parent company of all of the operators seeking relief in this case.

            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 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).

            MSHA’s record indicates that Inman’s proposed assessment was delivered on December 21, 2011, and became a final order of the Commission on January 20, 2012. Inman asserts that it filed its notice of contest on January 24, 2012, and was unaware of its delinquency until it received MSHA’s notice, dated February 1, 2012. Process asserts that it received the proposed assessment on December 5, 2011, and it became a final order of the Commission on January 4, 2012. Process states that it filed its notice of contest on January 12, 2012, and received MSHA’s delinquency notice on February 6, 2012. Spartan and Aracoma assert that they received the proposed assessments on January 9, 2012, which became final orders of the Commission on February 8, 2012. Alpha’s executive assistant discovered Spartan and Aracoma’s delinquencies on May 8, 2012.

            In affidavits filed in all dockets, Alpha’s executive assistant stated that she is responsible for processing and filing notices of contest for all Legacy Massey Energy (“Massey”) mines acquired by Alpha. She stated that this processing system has prevented any late filings in the past, but due to a holiday break and the increasing workload regarding the Massey settlement, she was unable to file timely contests in these matters.

            The Secretary does not oppose the requests to reopen, and notes that MSHA received payments for Inman and Process’ uncontested penalties by checks dated January 6 and 19, 2012. The Secretary cautions that she may oppose future motions to reopen penalty assessments that are not contested in a timely manner.

            Having reviewed the operators’ 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 a petition 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, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Dennis Smith, Esq.

Spilman, Thomas & Battle, PLLC

P.O. Box 273

Charleston, WV 25301

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

carol.marunich@dinsmore.com

sarah.korwan@dinsmore.com

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., 25^th 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