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),

ALLSTATE MATERIALS, LLC, et al.[1]

Docket Nos. SE 2015-455-M

WEVA 2015-1014

VA 2016-18

SE 2016-24-M

CENT 2016-28-M

KENT 2016-2

WEVA 2015-996

WEVA 2015-997

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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. (2012) (“Mine Act”). Between September 2 and October 26, 2015, the Commission received motions from the above-captioned operators seeking to reopen 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 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).

In all of these cases, the operators claim that they mailed timely notices of contest to the Arlington office of the Mine Safety and Health Administration (“MSHA”) at the address listed on the proposed assessment. The operators further contend that the contests were either lost in the mail or returned as undeliverable. The Secretary does not oppose reopening because of problems concerning mail delivery following the relocation of MSHA’s headquarters on July 15, 2015. In particular, MSHA maintains that the U.S. Postal Service has not consistently forwarded all of its mail to its new address.[2]

Having reviewed the requests to reopen and the Secretary’s response, in the interest 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, the Secretary shall file petitions for assessment of penalty in each case within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

James F. Bowman

P.O. Box 99

Midway, WV 25878

Charles Livingston

Livingston Aggregate LLC

5870 County Rd. 21

Akron, AL 35441-2205

Billy R. Shelton, Esq.

Jones Walters, Turner, & Shelton PLLC

2452 Sir Barton Way, Suite 101

Lexington, KY 40509

Chris Vaughn

Ozark Southern Stone

P.O. Box 40

Beaver, AR 72613

Michael T. Cimino, Esq.

Jackson Kelly, PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

David C. Powell

Allstate Materials, LLC

2708 Country Rd. 85

Deatsville, AL 36022

Clark Livingston

Livingston Aggregate LLC

5870 County Rd. 21

Akron, AL 35441-2205

W. Christian Schumann, 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 401

Arlington, VA 22202-5450

Exhibit 1

Operator	Docket Number	A.C. Number
Allstate Materials, LLC	SE 2015-455-M	01-03406-387911
Eastern Associated Coal, LLC	WEVA 2015-1014	46-01456-384741
Hills Coal Company, Inc.	VA 2016-18	44-03472-389324
Livingston Aggregate, LLC	SE 2016-24-M	01-03359-387668
Ozark Southern Stone	CENT 2016-28-M	03-01936-386157
Pine Branch Mining, LLC	KENT 2016-2	15-16883-383468
Raw Coal Mining Company	WEVA 2015-996	46-06265-383951
Sally Ann Coal Company	WEVA 2015-997	46-06843-383326

[1] For the limited purpose of addressing these motions to reopen, we hereby consolidate docket numbers SE 2015-455-M, WEVA 2015-1014, VA 2016-18, SE 2016-24-M, CENT 2016-28-M, KENT 2016-2, WEVA 2015-996, and WEVA 2015-997 involving similar procedural issues. 29 C.F.R. § 2700.12. For the sake of brevity, the relevant operators’ names, A.C. numbers, and associated docket numbers have been listed in Appendix A, attached to this order.

[2] Notice of the change in MSHA’s address was published in the Federal Register on September 2, 2015, nearly three months after MSHA moved its headquarters. 80 Fed. Reg. 52984-01. Additionally, we note that MSHA’s mailing address listed on the Notice of Contest Rights and Instructions included with proposed assessments and the Commission’s website were not up-to-date during the relevant time period. Insofar as the operators may have been confused by these documents, we find that their failure to timely contest the proposed penalties is excusable.