Clark Mining, Inc. (Commission decision, December 23, 2011)

Plain-English summary

Clark Mining's proposed penalty assessment was mailed to the Kentucky mine and signed for there, even though MSHA's address-of-record form listed the company's Virginia consultant. The consultant said he did not receive the assessment until MSHA faxed it after the contest deadline. His records showed that he routinely tracked and timely filed deadlines for multiple companies. The Commission found that the address mismatch supported relief, reopened the final assessment in the interest of justice, and remanded the case. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: Mailing an assessment somewhere other than the operator's official address of record may justify reopening.

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

December 23, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CLARK MINING, INC.

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Docket No. KENT 2011-1418
A.C. No. 15-19327-255241

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 August 25, 2011, the Commission received from Clark Mining, Inc. (“Clark Mining”) 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 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).

The record indicates that the proposed assessment was delivered on May 26, 2011, and became a final order of the Commission on June 27, 2011. Clark Mining’s consultant

asserts he
had not received the proposed assessment until it was faxed to him by MSHA on August 18, 2011.

The Secretary opposes the request to reopen and notes that the proposed penalty assessment was signed for by S. Clark. The Secretary states that the operator failed to provide an explanation as to why it did not contest the proposed assessment within 30 days.

The Commission sent Clark Mining’s consultant a letter asking him to explain why he failed to timely contest the proposed assessment, and what office procedures were implemented to prevent such failure in the future. In response, Clark Mining’s consultant asserts that he listed his name and address on MSHA’s address of record form for Clark Mining, but this assessment was mailed to the mine. The consultant also states that he routinely receives mail for many companies, sets a reminder for deadlines, and files timely with MSHA. From the enclosed documents submitted by the consultant and the Secretary, it appears that the proposed assessment was mailed to the mine in Kentucky, while the address of record is the consultant’s address in Virginia.

Having reviewed Clark Mining’s request and the Secretary’s response, in the interests 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/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

Distribution:

Eddie Joe Estep, Mine Consultant

Clark Mining, Inc.

299 Eva St.

Gate City, VA 24251

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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