ICG Hazard, LLC (Commission decision, April 25, 2008)

Plain-English summary

ICG Hazard received two proposed penalty assessments and forwarded them to the safety and health director for its parent company. The director decided to contest certain penalties, but clerical personnel misunderstood the instructions and did not return the contest forms to MSHA. The Secretary did not oppose reopening. The Commission remanded both assessments for the Chief Administrative Law Judge to determine whether good cause existed for the missed deadlines and whether relief from the final orders should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: Both reopening requests were remanded for a determination of good cause and entitlement to relief.
• Key point: A clerical misunderstanding after management chose to contest penalties requires factual review before final assessments may be reopened.

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

April 25, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ICG HAZARD, LLC

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Docket No. KENT 2008-661
A.C. No. 15-18850-135605

Docket No. KENT 2008-662
A.C. No. 15-18850-135609

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”).

On March 6, 2008, the Commission received from ICG
Hazard, LLC (“ICG”) motions by counsel seeking to reopen two 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).

On January 17, 2008, ICG received two proposed assessments issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). According to ICG, following receipt of the assessments, it forwarded them to the Director of Safety and Health for ICG’s parent company, who reviewed the assessments. ICG states that he determined to contest certain penalties in both assessments. However, ICG states that clerical personnel in the director’s office, through a misunderstanding, did not return assessment forms to MSHA indicating that the assessments would be contested. The Secretary states that she does not oppose the reopening of the assessments.

We have held 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 inadvertence or mistake. 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 ICG’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for ICG’s failure to timely contest the penalty proposals and whether relief from the final orders should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution:

John M. Williams, Esq.

Rajkovich, Williams,

Kilpatrick & True, PLLC

2333 Alumni Park Plaza

Suite 310

Lexington, KY 40517

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021