Ohio County Coal Company, LLC

Plain-English summary

Ohio County Coal asked the Commission to reopen two penalty assessments after its contests arrived six and seven days after the assessments became final. The operator said unexplained failures in its internal mail system delayed delivery to its safety manager, and it acted after receiving delinquency notices. The Secretary did not oppose reopening but warned that future late contests might be opposed. In the interests of justice, the Commission reopened both matters, remanded them for further proceedings, and cautioned the operator to make its internal processing reliable.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: Both final penalty assessments were reopened and remanded for proceedings on the merits.
• Key point: The Commission granted relief for short filing delays but warned that an unreliable internal mail system ordinarily does not establish grounds for reopening.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

January 3, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

OHIO COUNTY COAL COMPANY, LLC

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Docket No. KENT 2012-652

A.C. No. 15-17587-276338

Docket No. KENT 2012-656

A.C. No. 15-17587-273440

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 2 and March 7, 2012, the Commission received
from Ohio County Coal Company (“Ohio”) two motions 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).

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 proposed assessment No. 000276338 was delivered on January
10, 2012, and became a final order of the Commission on February 9, 2012. Proposed
assessment No. 000273440 was delivered on December 6, 2011, and became a final order of the
Commission on January 5, 2012. Ohio asserts that its safety manager only received proposed
assessment No. 000276338 on January 23, 2012, and proposed assessment No. 000273440 on
December 21, 2011. Ohio states that it has been unable to determine what caused the failure to
its internal mail delivery system. Ohio states that it only became aware of the delinquencies
when it received MSHA delinquency notices, dated February 29, 2012 and January 27, 2012.

The Secretary does not oppose the requests to reopen based solely on the fact that the
penalty contests were mailed six and seven days, respectively, after becoming a final order. The
Secretary also notes that MSHA received two payments for the uncontested penalties, by checks
dated February 21 and January 20, 2012. The Secretary cautions that she may oppose future
motions to reopen penalty assessments that are not contested in a timely manner.

The Commission has made it clear that where a failure results from an inadequate or
unreliable internal processing system, the operator has not established grounds for reopening the
assessment. Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co.,
32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov.
2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30
FMSHRC 1061, 1062 (Dec. 2008). We urge the operator to take all steps necessary to ensure
that future penalty contests are timely filed.

Having reviewed Ohio’s requests and the Secretary’s responses, in the interests of justice,
we hereby reopen these matters and remand them 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 petitions 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, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jeffrey K. Phillips, Esq.

Steptoe & Johnson, PLLC

1010 Monarch Street, Suite 250

Lexington, KY 40591-0810

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710