Luminant Mining Company, LLC (Commission decision, May 3, 2011)

Plain-English summary

Luminant Mining Company asked the Commission to reopen a penalty assessment that became final when it did not contest the assessment within 30 days. The Secretary did not oppose reopening. The Commission relied on its authority to grant relief from final orders in appropriate circumstances and noted that default is a harsh remedy when a party shows good cause. It reopened the assessment, remanded the matter for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. §§ 801 and 815(a)
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: An uncontested assessment may be reopened in appropriate circumstances when the operator seeks relief and the Secretary does not oppose.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 3, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

LUMINANT MINING COMPANY, LLC

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Docket No. CENT 2011-254

A.C. No. 41-01192-232364

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On December 10, 2010, the Commission received from Luminant Mining Company, LLC (“Luminant”) a motion requesting that the Commission 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). On January 20, 2011, the Commission received a response from the Secretary of Labor stating that she does not oppose the request to reopen the assessment.

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).

Having reviewed the facts and circumstances of this case, the operator’s request, and the Secretary’s response, 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.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Karen L. Johnston, Esq.

Jackson Kelly PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209

Melanie Garris

Office of the Penalty Compliance

U.S. Department of Labor, MSHA

1100 Wilson Boulevard

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001