Frasure Creek Mining, LLC (Commission decision, August 22, 2012)

Plain-English summary

Frasure Creek's security guard received a proposed penalty assessment but failed to forward it to management as instructed. The company learned of the final assessment only after receiving a delinquency notice and then promptly sought reopening. Frasure said it had contested the underlying citation earlier and changed its procedures so security guards would immediately alert management about future assessments. The Secretary did not oppose relief, although MSHA had received payment for the uncontested portions. The Commission reopened and remanded the matter for a penalty proceeding.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: Prompt corrective action can support reopening when a trained security employee fails to route a proposed assessment to management.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 22, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

FRASURE CREEK MINING, LLC

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Docket No. KENT 2012-335
A.C. No. 15-19068-265638

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 13, 2011, the Commission received from Frasure Creek Mining, LLC (“Frasure”) 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).

MSHA’s record indicates that the proposed assessment was delivered on September 9, 2011, and became a final order of the Commission on October 10, 2011. Frasure asserts that its security guard failed to forward the proposed assessment to appropriate personnel, despite having been instructed to do so. Frasure states that it was not aware of the assessment until it received a delinquency notice, dated November 28, 2011. Frasure maintains that it contested the underlying citation on March 11, 2011, and upon receiving the delinquency notice regarding the proposed assessment, promptly filed this motion to reopen. Moreover, Frasure asserts that it has modified its procedures to ensure that security guards alert management as soon as they receive a proposed assessment. The Secretary does not oppose the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by check dated December 7, 2011. However, the Secretary urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Frasure’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:

Christopher D. Pence, Esq.

Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

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