Secretary of Labor v. Peabody Twentymile Mining, LLC

Plain-English summary

Peabody's safety manager, who normally processed assessments, was unexpectedly absent on short-term disability. The assessment went to an employee taking over compliance duties who had not been told that processing it was his responsibility and had not been trained. Peabody discovered the final assessment through MSHA's data system and moved to reopen within 30 days of finality. The company trained the backup employee and arranged for future assessments to go routinely to outside counsel. The Commission found mistake, reopened the two intended citation contests, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The two penalty contests were reopened and the case was remanded.
• Key point: An unexpected disability and an untrained temporary handoff may be excused when the operator acts promptly and corrects the process.

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.

PEABODY
TWENTYMILE MINING,

LLC

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Docket
No. WEST 2023-0363

A.C.
No. 05-03836-579699

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BEFORE: Jordan,
Chair; Althen, Rajkovich, Baker, and Marvit, Commissioners

ORDER

BY THE COMMISSION:

This
case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On August 31, 2023, the Commission received
from Peabody Twentymile Mining, LLC (“Peabody”) a motion to reopen a final
order of the Commission pursuant to section 105(a) of the 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 to the operator on July 3,
2023, and became a final order of the Commission on August 2, 2023. Thereafter,
MSHA received partial payment of the civil penalties. On September 19, 2023,
MSHA sent the operator a delinquency notice. The operator then sent an additional
payment in satisfaction of the total assessed penalties at issue in the
assessment.

Peabody
asserts that it intended to contest the civil penalties associated with
Citation Nos. 9155573 and 9155217 but failed to timely file a contest because
its Safety Manager, who reviews and processes proposed assessments and then
forwards them to outside counsel for contesting, was out of the office due to
an unexpected short-term disability. During the Safety Manager’s absence, the
assessment was sent to an employee who was taking over compliance duties. That
employee did not know that he was responsible for processing the assessment and
had received no training regarding how to process the assessment. The
operator’s counsel later discovered on MSHA’s Data Retrieval System that the
proposed penalties had become final. The operator submits that the employee has
been trained on procedures for handling assessments and will routinely forward
all proposed assessments to outside counsel. Peabody states that it submitted
payment for all of the proposed penalties on the assessment, except for the
penalties associated with Citation Nos. 9155217 and
9155573. The Secretary does not oppose the operator’s motion to reopen.

Having
reviewed Peabody’s request and the Secretary’s
response, we find that Peabody has demonstrated that its failure to timely
contest the proposed penalties for Citation Nos.
9155217 and 9155573 was due to a mistake. Although Peabody later sent an
additional payment to MSHA,[1]
it is not clear that the payment was intended as payment of the the proposed
penalties associated with Citation Nos. 9155217 and 9155573.[2]
In addition, Peabody filed its motion to reopen within 30 days of the proposed
penalties becoming final orders and before MSHA sent the delinquency notice. See
Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that
motions to reopen received within 30 days of an operator’s receipt of its first
notice from MSHA of its untimeliness “will be presumptively considered as
having been filed within a reasonable amount of time”).

In the interest of
justice, we hereby reopen the contest of 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. See Sterling
Materials, 45 FMSHRC 467, 468 (June 2023) (reopening when operator failed
to timely contest a penalty due to clerical error and paid the penalty). 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Christopher
G. Peterson, Esq.

Fisher
& Phillips LLP

1125
17th Street, Suite 2400

Denver,
CO 80202

[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]

[1] We note that the
remittance coupon submitted by both parties shows that the operator had an
outstanding balance.

[2] Commissioner Baker
has previously stated that it is his position that the accidental payment of a
civil penalty does not constitute excusable neglect. See e.g., Omya, Inc.,
45 FMSHRC 131 (Mar. 2023). However, in light of the fact that the operator’s
payment here may not have been directed towards the civil penalties at issue
but instead towards an unrelated, outstanding balance, Commissioner Baker would
determine that in the instant case payment was not the result of an inadequate
or unreliable internal processing system.