Consolidation Coal Company (Commission decision, October 4, 2007)

Plain-English summary

MSHA assessed penalties for 27 citations and orders at Consolidation Coal's Loveridge mine. The mine's safety supervisor had retired shortly before the assessment arrived, and his replacement was unfamiliar with the contest process and did not forward the paperwork to headquarters until after the deadline. Consol then sought to contest 14 penalties, and the Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to decide whether the personnel transition established good cause and justified relief from the final order.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: Fourteen proposed penalties were remanded for a good-cause and reopening determination.
• Key point: A staff transition and an inexperienced replacement may support reopening, but the operator must establish good cause for its missed internal processing deadline.

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

October 4, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CONSOLIDATION COAL COMPANY

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Docket No. WEVA 2007-733

A.C. No. 46-01433-121119

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On August 22, 2007, the Commission received from Consolidation Coal Company (“Consol”) a motion made by counsel 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).

On July 5, 2007, the Department of Labor’s Mine Safety and Health Administration issued assessment No. 000121119 to Consol, proposing penalties for 27 citations and orders that previously had been issued at Consol’s Loveridge mine. Consol states that its safety supervisor at that mine had retired in mid-June, and that his replacement was unfamiliar with the procedures for contesting proposed penalties. According to Consol, the new safety supervisor forwarded the assessment to Consol’s headquarters after over 30 days had passed. Consol soon thereafter sought to contest 14 of the proposed penalties. The Secretary states that she does not oppose Consol’s request to reopen the proposed penalty assessment.

We have held 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 inadvertence or mistake. 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).

Having reviewed Consol’s motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Consol’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001