Secretary of Labor v. White County Coal, LLC (Commission decision, April 27, 2010)

Plain-English summary

White County Coal said it marked 14 citations and $39,838 in penalties for contest and sent the assessment form to MSHA's Civil Penalty Compliance Office. It separately paid $8,053 for the remaining citations, and MSHA timely received that payment. MSHA had no record of the contest form and later sent a delinquency notice for the disputed amount. The Secretary did not oppose reopening. The Commission reopened the assessment, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: Fourteen citation contests totaling $39,838 were reopened and remanded.
• Key point: Timely payment of uncontested penalties can corroborate an operator's account that it separately submitted contests that MSHA cannot locate.

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 27, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

WHITE COUNTY COAL, LLC

:

:

Docket No. LAKE 2009-588

A.C. No. 11-03058-181275

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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 July 28, 2009, the Commission received from White County Coal, LLC (“White County”) a motion by counsel 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).

On April 7, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000181275 to White County, proposing civil penalties for several citations. White County maintains that it filled out the proposed assessment form indicating that it intended to challenge 14 of the citations and their associated penalties in the sum of $39,838, and sent the contest to MSHA’s Civil Penalty Compliance Office. White County states that it sent its payment in the amount of $8,053 for the remaining citations to MSHA’s Payment Processing Center in St. Louis, Missouri. The operator further states that on approximately July 1, 2009, MSHA sent White County a notice stating that it was delinquent in paying $39,838 in penalties to MSHA.

The Secretary does not oppose White County’s request to reopen the proposed penalty assessment. She notes that a payment dated April 27, 2009, in the amount of $8,053 was timely received at MSHA’s Payment Processing Center. However, the Secretary states that MSHA has no record of receiving the penalty contest form at its Civil Penalty Compliance Office in Arlington, Virginia.

Having reviewed White County’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.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner    

______

Robert F. Cohen, Jr., Commissioner

Distribution:

Gary D. McCollum, Esq.

White County Coal, LLC

771 Corporate Drive, Suite 1000

Lexington, KY 40503

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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