Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 28, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

INR-WV OPERATING, LLC

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Docket No. WEVA 2010-1421
A.C. No. 46-09217-207483

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 August 2, 2010, the Commission received a motion by counsel to reopen a penalty assessment issued to INR-WV Operating, LLC (“INR-WV”) that became 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).

On December 30, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000207483 to INR-WV. INR-WV asserts that, although the contest form was received and signed for by an individual in its Human Resources Department, it was mistakenly never delivered to its Safety Director for contest.

The Secretary opposes INR-WV’s request to reopen because its explanation is conclusory and because an unreliable internal procedure does not provide adequate grounds for reopening. The Secretary also notes that a delinquency notice was sent to the operator on April 8, 2010, more than three and a half months before it filed its reopening request, and the case was referred to the Treasury Department for collection on July 8, 2010. She also submits that in March 2010, INR-WV sought reopening in two other cases (Docket Nos. WEVA 2010-788 and WEVA 2010-810), which underscores the breakdown in the operator’s internal procedures. The Secretary further asserts that during the preparation of the March motions to reopen, the operator or its counsel should have learned that this case had also become a final order that was delinquent.

Having reviewed INR-WV’s request to reopen and the Secretary’s response thereto, we agree that the operator has failed to provide a sufficient basis for the Commission to reopen the penalty assessment. In particular, INR-WV has failed to adequately explain why it delayed approximately three and a half months in responding to the delinquency notice sent by MSHA. Accordingly, we hereby deny without prejudice INR-WV’s request to reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that INR-WV may submit another request to reopen the assessment. Any amended or renewed request by the operator to reopen this assessment must be filed within 30 days of this order. Any such request filed after that time will be denied with prejudice.