FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
May 30, 2013
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. WARRIOR COAL, LLC |
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Docket No. KENT 2012-1399 A.C. No. 15-17216-291755 Docket No. KENT 2012-1432 A.C. No. 15-17216-289049 |
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 August 1 and 14, 2012, the Commission received
from Warrior Coal, LLC (“Warrior”) two motions seeking
to reopen two 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).
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).
Warrior asserts that it received proposed assessment No. 000291755 on June 14, 2012, marking the last day for contest as July 16, 2012. The mine offices were closed between June 25 and July 9 during an extended closure of the mine, and Warrior’s safety director completed the contest form on July 13. However, the form was inadvertently misfiled and mailed to MSHA two days late, on July 18, 2012. Proposed assessment No. 000289049 was received on May 15, 2012, and became a final order of the Commission on June 14, 2012. Warrior’s safety director completed the contest form on June 6, but the accounts payable clerk did not mail it to MSHA until June 19, due to her responsibilities in preparing for the mine closure. Warrior has taken steps to ensure that future penalty contests are timely filed. The Secretary does not oppose the requests to reopen, and urges the operator to take steps to ensure that future penalty contests are timely filed even during periods of mine closure.
Having reviewed Warrior’s 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
Gary D. McCollum, Esq.
Warrior Coal, LLC
771 Corporate Drive, Suite 500
Lexington, KY 40515
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710