Secretary of Labor v. ICG Illinois LLC

Plain-English summary

ICG Illinois intended to contest citations in two assessments but mistakenly sent the contest notices with its payments for uncontested citations to MSHA's St. Louis lockbox. The notices should have been sent separately to MSHA's Arlington office, so both assessments became final Commission orders. After receiving a delinquency notice, ICG made three calls to MSHA and obtained instructions on October 7, 2021. It filed the reopening motions 13 days later, and the Secretary did not oppose relief. The Commission reopened both consolidated matters and remanded for the Secretary to file penalty petitions within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both final assessments were reopened and remanded for further penalty proceedings.
• Key point: Misrouting contest notices to the payment lockbox, followed by persistent inquiries and prompt filing after receiving instructions, supported reopening.

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.

ICG
ILLNOIS LLC

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Docket
No. LAKE 2022-0015

A.C.
No. 11-02664-536307

Docket
No. LAKE 2022-0016

A.C.
No. 11-02664-538189

BEFORE: 
Traynor, Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE COMMISSION:

These
matters arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On October 20, 2021, the Commission received
from ICG Illinois LLC (“ICG”) a motion 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). [1]

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”)
indicate that the proposed assessments were delivered on June 18, 2021 and July
23, 2021, and became final orders of the Commission on July 19, 2021 and August
23, 2021, repectively. ICG asserts that notice of its intentention to contest the
citations was mistakenly sent to MSHA’s lock box address in St. Louis, along
with ICG’s payment for the uncontested citations. The contest notice should
have been separately sent to MSHA’s Arlington, Virginia office. The Secretary
does not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.

Having
reviewed ICG’s request and the Secretary’s
response, we find that after a delinquency notice was sent by MSHA, ICG
acted promptly to determine the reason for such notice. The operator made three
calls to MSHA, the final one occurring on October 6, 2021. After MSHA called
back on October 7, 2021, and provided the operator with information regarding
where to file a Motion to Reopen, the Commission received ICG’s Motions 13 days
later. In the interest 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/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Steve Benner

ICG Illinois LLC

5945 Lester Road

Williamsville, IL
62693

[email protected]

[1]  For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket
numbers LAKE 2022-0015 and LAKE 2022-0016 because they involve similar factual
and procedural issues. 29 C.F.R. § 2700.12.