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. CANYON FUEL COMPANY, LLC

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Docket No. WEST 2019-270 A.C. No. 42-01890-480720

BEFORE:  Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, 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 April 11, 2019, the Commission received from Canyon Fuel Company, LLC (“Canyon”) 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 January 15, 2019, and became a final order of the Commission on February 14, 2019.

Canyon asserts that its safety manager mailed a contest form for Citation Nos. 8537411 and 8537412 to the MSHA Penalty Compliance Office in January 2019. However, Canyon provided no proof that the safety manager mailed the contest form. Canyon further asserts that it mailed payment for the uncontested citations to MSHA’s Payment Office on or around January 31, 2019. However, while MSHA recorded a payment for the contested citations on February 20, 2019, it has no record of receiving the operator’s contest. After Canyon received a delinquency notice from MSHA on April 1, 2019, it filed a Motion to Reopen within ten days. The Secretary does not oppose the request to reopen.

            Having reviewed Canyon’s request and the Secretary’s response, we find that the operator’s failure to timely contest the assessment was the result of mistake or inadvertence. 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/ Marco M. Rajkovich, Jr.

                                                                                    Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution:

R. Henry Moore, Esq.

Fisher & Phillips LLP

One Oxford Centre

301 Grant St., Suite 4300

Pittsburgh, PA 15219-1407

Ali Beydoun, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Acting Chief Administrative Law Judge Margaret Miller

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