FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
September 18, 2012
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA
v.
CANYON FUEL COMPANY, LLCĀ |
: : : : : : : |
Docket No. WEST 2012-303 A.C. No. 42-01566-267560 |
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 December 15, 2011, the Commission received from Canyon Fuel Company, LLC (“Canyon”) 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. 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 became a final order of the Commission on October 10, 2011. Canyon asserts that its safety manager asked an employee to pay the penalty and mail the contest form. The employee sent a check for the uncontested penalties, but did not mail the contest form. The Secretary does not oppose the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by check dated September 27, 2011. The Secretary bases her non-opposition solely on the fact that this motion to reopen was filed shortly after receiving the delinquency notice, dated November 28, 2011. The Secretary notes that similar inadequate office procedures were evident in Canyon’s previous motion to reopen, WEST 2011-1152, which was reopened on November 18, 2011.
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.
Having reviewed Canyon’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/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
Distribution:
Christopher G. Peterson, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
cgpeterson@jacksonkelly.com
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
lbeverage@jacksonkelly.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., 25th 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