FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH      ADMINISTRATION (MSHA)                                  v. LISBON VALLEY MINING CO., LLC

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Docket No. WEST 2017-237-M A.C. No. 42-02406-419923

BEFORE:    Althen, Acting Chairman; Jordan, Young, and Cohen, 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. (2012) (“Mine Act”).  On February 15, 2017, the Commission received from Lisbon Valley Mining Co., LLC (“Lisbon Valley”) 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), 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief.  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).

            Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on September 13, 2016, and became a final order of the Commission on October 13, 2016.  Lisbon Valley asserts that it initially contacted its local MSHA office to contest this matter, rather than properly contesting with the MSHA Office in Arlington, VA.  The operator provided a letter sent to the MSHA’s Rocky Mountain District on August 30, 2016 and a series of e-mails dated August 31 to October 24, 2016, to substantiate its assertions.  Lisbon Valley claims it only learned about its mistake when it was contacted by MSHA’s Office of Assessments on February 8, 2017.  Lisbon Valley has not filed any other motions to reopen with the Commission in the last two years and responded immediately upon discovering its mistake.  The Secretary does not oppose the request to reopen. 

            Having reviewed Lisbon Valley’s request and the Secretary’s response, we determine that the operator mistakenly failed to send its contest to the correct MSHA Office.  In the interest 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/ William I. Althen

                                                                                    William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

                                                                                   Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Drew Coats

Human Resources/Safety Manager

Lisbon Valley Mining Co., LLC

P.O. Box 400

Moab, UT 84532

Ali Beydoun, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450