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: Duffy, Young, and Nakamura, Commissioners

            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 8, 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 January 5, 2011, and became a final order of the Commission on February 4, 2011. MSHA received an untimely contest, post marked February 9, 2011. MSHA sent a delinquency letter, dated February 17, 2011, notifying the operator that the contest was filed five days after the assessment became a final order of the Commission. WVMP asserts that it completed its internal investigation and filed the contest form on February 8, 2011, only four days late. Moreover, WVMP notes that it filed its motion to reopen within two weeks of receiving MSHA’s delinquency letter.

            The Secretary does not oppose the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by check dated February 17, 2011. The Secretary cautions she may oppose future motions to reopen that are not contested in a timely manner.

            The Commission sent WVMP a letter asking it to explain why it failed to timely contest the proposed assessment, and what office procedures were implemented to prevent such failure in the future. In response, WVMP asserts that the contest form was lost in the shuffle as its safety director attempted to catch up on paperwork over the holidays, and was heavily involved in the process of preparing plans for a shaft-sinking project and a surface coal mine. Since missing the deadline, the safety director has made efforts to ensure the timely processing of contest forms. The safety director states that he segregates the contest forms on his desk, noting the applicable deadline, and that he has spoken with other employees to ensure that everyone understands the importance of timely filing the forms.

            Having reviewed WVMP’s request and the Secretary’s response, in the interests of justice, we hereby reopen this matter and remand it 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/ Michael F. Duffy

                                                                                     Michael F. Duffy, Commissioner

                                                                                    /s/ Michael G. Young

Michael G. Young, Commissioner

                                                                                     /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Chairman Jordan and Commissioner Cohen, dissenting:

            During approximately the last three years, West Virginia Mine Power (“WVMP”) has come to the Commission three times (in addition to its motion in this case), asking us to reopen penalty assessments that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). In each of these cases, WVMP missed a statutory deadline for contesting a proposed penalty assessment because of failed management procedures. West Virginia Mine Power, Inc., 31 FMSHRC 600 (June 2009); West Virginia Mine Power, Inc., 32 FMSHRC 104 (Feb. 2010); West Virginia Mine Power, Inc., Docket No. WEVA 2011-2481 (issued on this day). In one of these cases, the Commission noted that WVMP’s lack of an effective system for receiving and processing MSHA assessments “appears to have been a chronic and longstanding problem.” West Virginia Mine Power, Inc., 32 FMSHRC at 106. This record of missed deadlines in large part is why we would deny the relief requested in this matter.

             WVMP states the contest form for the penalty assessment at issue here was lost while its safety director tried to catch up on paperwork over the holidays. It also claims that it filed the contest late because the safety director was involved with a shaft-sinking project and preparations for the operating plans for a surface coal mine. There is nothing extraordinary about these activities - they come with the territory, so to speak, of running a mine, and, given this operator’s history of missed deadlines, do not convince us to award relief here. Furthermore, WVMP has previously asserted that it improved its procedures to ensure the timely processing of contest forms. 32 FMSHRC at 105.

            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 adequate procedure to monitor and reliably process received mail represents an inadequate or unreliable internal processing system. 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). The lack of an effective system for receiving and processing proposed assessments continues to be a chronic and long-standing problem for this operator. Its track record indicates it has failed to take reliable and effective steps to ensure that proposed penalty assessments will be timely contested.

            Accordingly, having reviewed WVMP’s request, we conclude that it has failed to establish good cause for reopening the proposed penalty assessment and would deny its motion.

                                                                         /s/ Mary Lu Jordan

                                                                        Mary Lu Jordan, Chairman

                                                                         /s/ Robert F. Cohen, Jr.

                                                  Robert F. Cohen, Jr., 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