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. MARFORK COAL COMPANY

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Docket No. WEVA 2019-0321 A.C. No. 46-09048-479245

BEFORE:  Traynor, Chair; Althen and Rajkovich, 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 March 15, 2019, the Commission received from Marfork Coal Company (“Marfork”) 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 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 December 10, 2018, and became a final order of the Commission on January 9, 2019. Marfork asserts that the proposed assessment was received at the operator’s mailing address on December 10; however, the delivery driver who received it was unable to deliver the document to the mine’s operational address until two days later. As a result, the assessment was incorrectly stamped as received on December 12, 2018, with a response deadline of January 11, 2019. Marfork mailed the notice of contest on January 11, two days after the assessment became final. Marfork learned that the delinquency in late February 2019, and filed a motion to reopen within 30 days.

The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed. Marfork states that it will endeavor to ensure that the date entered in its processing system reflects the actual date of receipt, and will remind all personnel handling contests, including mail delivery handlers, of the importance of proper mail-handling and calendaring.

            Having reviewed Marfork’s request and the Secretary’s response, we find that the delay in this instance was the result of an inadvertent administrative error. To prevent such a mistake from recurring, however, we urge the operator to enact procedures to ensure the correct date of receipt is entered into the calendaring system going forward. 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/ Arthur R. Traynor, III

                                                                                    Arthur R. Traynor III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

James P. McHugh, Esq.

Hardy Pence, PLLC,

10 Hale Street, 4th Floor

PO Box 2548

Charleston, WV 25329-2548

jmchugh@hardypence.com

John M. McCracken, Esq.

Office of the Solicitor

Division of Mine Safety and Health

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

McCracken.John.M@dol.gov

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Nelson.April@dol.gov

Chief Administrative Law Judge Glynn Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@DOL.GOV