Secretary of Labor v. Prairie State Generating Company, LLC (Commission decision, March 5, 2018)

Plain-English summary

Prairie State Generating received a proposed penalty assessment and mailed its notice of contest within the 30-day period. Postal tracking showed that MSHA's Arlington office received the contest two days later, but MSHA later sent a delinquency notice and treated the assessment as final. Prairie State promptly contacted MSHA and argued that the agency had misplaced the filing. The Secretary did not oppose the request or dispute the tracking evidence. The Commission held that timely notice prevented the assessment from ever becoming final, treated the motion to reopen as moot, and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was held not to be final, the reopening motion was moot, and the case was remanded.
• Key point: An operator does not need Rule 60(b) relief when reliable evidence shows that MSHA received a timely notice of contest.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)        

v.

PRAIRIE
STATE GENERATING

COMPANY,
LLC                                              

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Docket
No. LAKE 2017-158

A.C.
No. 11-03193-418476

BEFORE:  Althen,
Acting Chairman; Jordan, 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. (2012) (“Mine Act”). On February 13, 2017, the Commission received from Prairie State Generating Company, LLC (“Prairie State”) a motion seeking to reopen a penalty assessment that appeared to have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was mailed to Prairie State on August 8, 2016. The proposed assessment became a final order of the Commission on or about September 7, 2016, when it appeared that the operator had not filed a Notice of Contest within 30 days. [1]

Prairie State asserts that it timely
contested the proposed assessment on September 6, 2016. Prairie State provided copies of USPS tracking documents showing that its contest was mailed on September 6, 2016 and delivered to MSHA’s Arlington, Virginia office on September 8, 2016. On December 16, 2016, the Secretary issued a delinquency notice to the operator. On December 22, 2016, the operator promptly contacted MSHA regarding the alleged delinquency.  Prairie State posits that the Secretary may have misplaced the contest after receipt. The Secretary does not oppose the request to reopen nor does he challenge the assertion that the contest was misplaced.

Having reviewed Prairie State’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested the proposed assessment. Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, Prairie State notified the Secretary of the contest. This obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to reopen is moot, and this case is remanded 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.

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

R.
Henry Moore, Esq.

Arthur
M. Wolfson, Esq.

Jackson
Kelly, PLLC

Three
Gateway Center

Suite
1500

401
Liberty Ave.

Pittsburgh,
PA 15222

Todd
A. Grounds

Safety
Manager

Prairie
State Generating Company, LLC

4274
Country Hwy 12

Marissa,
IL 62257

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

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

[1]
MSHA represents in its December 16, 2016 delinquency letter that proposed assessment became a final order on October 31, 2016. The Secretary has not provided the Commission with any explanation as to why MSHA considered the final order date to be more than four months after the proposed assessment was mailed to the operator. Regardless of this discrepancy in the record, the Secretary does not contest Prairie State’s assertion that it filed is contest on September 6, 2017, prior to any possible final order date.