Secretary of Labor v. The Ohio Valley Coal Company (Commission decision, December 7, 2016)

Plain-English summary

Under section 105(a) of the Mine Act an operator has 30 days from receiving a proposed penalty assessment to tell the Secretary it wants to contest it. Miss that window and the assessment becomes a final order of the Commission automatically. MSHA delivered Ohio Valley Coal's assessment on July 18, 2014, and it went final on August 17, 2014. The company's safety director was new and misread the procedure: after marking which penalties to contest, he sent the form to the corporate office expecting it to go to MSHA together with a check for the penalties the company intended to pay. The form ended up four days late and at the wrong MSHA office. Ohio Valley said it has since given the safety director more training on Mine Act procedure. The Secretary did not oppose reopening but urged the company to make sure future contests go to the right address within 30 days. The Commission reopened the matter and remanded to the Chief Administrative Law Judge, directing the Secretary to file a penalty petition within 45 days under Commission Rule 28.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: Final order reopened and the case remanded to the Chief Administrative Law Judge, with a penalty petition due from the Secretary within 45 days.
• Key point: A new safety director's honest misunderstanding of the contest procedure can be excusable neglect under Rule 60(b), but the 30-day clock in section 105(a) runs from delivery whether or not anyone at the company understands it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,              :           

MINE
SAFETY AND HEALTH       :           

ADMINISTRATION
(MSHA)        :        

:

:        Docket No. LAKE 2014-729-M

v.                    :        A.C. No. 33-01159-355875  

:         

THE
OHIO VALLEY COAL COMPANY     :

BEFORE:
Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On September 17, 2014, the Commission received from The Ohio Valley Coal Company (“Ohio Valley”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) demonstrate that the proposed assessment was delivered on July 18, 2014, and became a final order of the Commission on August 17, 2014. Ohio Valley asserts that its error arose from the fact that the safety director was new and misunderstood the process. Specifically, the safety director thought that after marking the penalties to be contested, he was supposed to send the contest form to Ohio Valley’s corporate office where it would be submitted to MSHA along with the check for the portion of the penalties that he intended to pay. This caused the contest form to be filed four days late, as well as being sent to the wrong MSHA office. The operator asserts that, following this mistake, further training has been provided to the safety director regarding the procedural requirements of the Mine Act. The Secretary does not oppose the request to reopen . However, he urges Ohio Valley to take steps to ensure that future penalty contests are delivered to the proper address and timely contested within 30 days of receipt.

Having
reviewed Ohio Valley’s request
and the Secretary’s response, in the interest 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 G.
Young

Michael G. Young,
Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

Distribution:

Erik
L. Silkwood, Esq.

Hardy
Pence, PLLC

500
Lee Street

Suite
701, East

P.O.
Box 2548

Charleston,
WV 25329

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450