Secretary of Labor v. Westmoreland Absaloka Mining, LLC (Commission decision, September 20, 2023)

Plain-English summary

Westmoreland timely mailed its payment for uncontested citations to MSHA's St. Louis lockbox, but mistakenly included its contest rather than sending the contest to MSHA's Arlington address. Two days after the assessment became final, MSHA told Westmoreland about the error. The company immediately emailed another contest and moved to reopen within 30 days. The Secretary did not oppose relief. The Commission found good cause and good faith, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was reopened and remanded.
• Key point: A contest mistakenly mailed with the operator's payment, followed by prompt corrective action, 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.

WESTMORELAND
ABSALOKA

MINING,
LLC

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Docket
No. WEST 2023-0221

A.C.
No. 24-00910-572821

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On May 9, 2023, the Commission received from Westmoreland Absaloka Mining, LLC (“Westmoreland”) 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”) indicate that the proposed assessment was delivered on March 23, 2023 and became a final order of the Commission on April 24, 2023. MSHA received partial payment of the assessment on April 20, 2023, a few days before the assessment became a final order. The Secretary does not oppose the request to reopen.

Payments for uncontested citations must be
mailed to MSHA’s Lock Box in St. Louis, Missouri. However, contests of proposed assessments must be mailed to a different MSHA address in Arlington, Virginia. On April 13, 2023, Westmoreland correctly mailed its payment for the uncontested citations to St. Louis. However, on the same day, Westmoreland mistakenly mailed its contest along with its payment to the St. Louis address.

On April 24, the assessment became a final
order. Two days later, Westmoreland was informed by MSHA that its first contest was sent to an incorrect address. Therefore, on April 26, Westmoreland sent a second contest, this time via email, to MSHA’s email address. On April 28, MSHA informed the operator that its second contest was untimely filed.

We note that the motion to reopen was
timely filed. The Commission has previously held that “[m]otions to reopen received within 30 days of an operator’s receipt of its first notice from MSHA that it has failed to timely file a notice of contest will be presumptively considered as having been filed within a reasonable amount of time.” Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopen was filed on May 9, 2023, within 30 days of the final order of April 24, 2023. Therefore, the motion to reopen was filed within a reasonable amount of time.

        Having

reviewed Westmoreland’s request and the
Secretary’s response, we find that Westmoreland has demonstrated good cause for its failure to timely respond and acted in good faith by timely filing its request to reopen. 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, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Robin
Irwin

Safety
Manager

Westmoreland
Absaloka Mining, LLC

P.O.
Box 449

Hardin,
MT 59034

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]