Amfire Mining Company, LLC (Commission decision, November 30, 2011)

Plain-English summary

Amfire sought to reopen a penalty assessment after MSHA had no record of receiving its contest for Citation No. 8012006. The company's safety director said he mailed that contest in the same envelope as another contest that MSHA did receive. He discovered the delinquency while reviewing MSHA's Mine Data Retrieval System, and the Secretary did not oppose reopening. The Commission reopened the assessment in the interests of justice, remanded the case, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: Evidence that a missing contest was mailed with another contest MSHA received supported reopening the assessment.

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

November 30, 2011

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

AMFIRE MINING COMPANY, LLC 

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:Docket No. PENN 2011-441

A.C. No. 36-08704-247163

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 August 1, 2011, the Commission received from Amfire Mining Company, LLC (“Amfire”) a motion submitted 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).

Amfire asserts it received the proposed assessment on February 22, 2011, and contested Citation No. 8012006 on March 4, 2011. Amfire’s Safety Director submits in an affidavit that he sent the contest in this case in the same envelope with another completed proposed penalty assessment contest form, No. 000247165. The Safety Director discovered the delinquency during the week of July 7, 2011, while reviewing MSHA’s Mine Data Retrieval System. The Secretary does not oppose the request to reopen and notes that MSHA received a contest in case No. 000247165. However, MSHA has no record of receiving a contest in this case, No. 000247163. The record also shows that MSHA received a payment for the uncontested citations which were included in Assessment Case No. 000247163.

Having reviewed Amfire’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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jason P. Webb, Esq.

Jackson Kelly, PLC

Three Gateway Ctr., Suite 1340

401 Liberty Ave.

Pittsburgh, PA 15222-1000

Susan M. Jordan, Esq.

Office of the Solicitor

U.S. Department of Labor

The Curtis Center, Suite 630E

170 S. Independence Mall West

Philadelphia, PA 19106-3306

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

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021