FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 2, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 September 28, 2011, the Commission received from West Virginia Mine Power, Inc. (“WVMP”) a motion submitted by counsel 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. 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).

            The record indicates that the proposed assessment was delivered on June 6, 2011, and became a final order of the Commission on July 6, 2011. MSHA mailed a delinquency notice on August 24, 2011, and received a payment check dated September 20, 2011, in the amount of $923. WVMP filed a motion to reopen on September 26, 2011. WVMP asserts that although MSHA records show that the assessment was signed for by M. Odell, WVMP has no record of receiving it since it was not delivered to the safety director. WVMP claims it has a meticulous process for handling assessment forms which are forwarded to the safety director.

            The Commission sent WVMP a letter asking it to provide the affidavit of M. Odell, and explain what office procedures were implemented to prevent failures to timely contest in the future. In response, WVMP asserts that Miranda Odell forwarded the proposed assessment to Jim Kiser, the safety director of a different mine. Mr. Kiser cannot recall whether he delivered the assessment to his son, Jimmie Kiser, the safety director of the mine involved in this case. WVMP asserts that “Jimmie Kiser likewise cannot recall whether he received the 1000-179 Form,” Ren. Mot. at 4, but Mr. Kiser’s declaration states that he did not receive the assessment form. Ren. Mot. Ex. 3 at 2. WVMP states that Ms. Odell does not generally receive packages as part of her duties, and that she delivered the letter to Jim Kiser, since she did not know the individual to whom the letter was addressed, Mr. Grover McClung. WVMP fails to identify any new office procedures implemented to prevent such failures in the future.

            The Secretary opposes the request to reopen and notes that the operator fails to establish exceptional circumstances that warrant reopening. The Secretary contends that there appears to be no monitoring or follow-up for receiving and processing proposed assessments to ensure that contests are timely filed. Moreover, the Secretary states that she did not oppose a previously-filed motion to reopen in which similarly inadequate or unreliable internal procedures were described by Mr. Kiser. In the previous case, the Secretary urged the operator to take penalty assessments seriously and cautioned that she might oppose future motions to reopen penalty assessments that were not contested in a timely manner.

            The Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). In this case, we conclude that the lack of any procedure to monitor and reliably process received mail represents an inadequate or unreliable internal processing system. See Double Bonus, 32 FMSHRC at 1156; Sloss Indus., Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs v. Air Canada, 810 F.2d 1529, 1537 (11th Cir. 1987). We also note that the Secretary sent her previous cautionary non-opposition on March 18, 2011, while this proposed assessment was delivered on June 6, 2011. Therefore, the operator was on notice, and had more than two months to implement new office procedures for the timely processing of MSHA correspondence.

            Having reviewed WVMP’s requests and the Secretary’s response, we conclude that WVMP has failed to establish good cause for reopening the proposed penalty assessment, and deny its motions with prejudice.

                                                                         /s/ Mary Lu Jordan

                                                                        Mary Lu Jordan, Chairman

                                                                         Michael F. Duffy, Commissioner

                                                Michael G. Young, Commissioner

                                                                         /s/ Robert F. Cohen, Jr.

                                                 Robert F. Cohen, Jr., Commissioner

                                                                         Patrick K. Nakamura, Commissioner 

Distribution:

Matthew H. Nelson, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

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

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021