Progress Coal (Commission decision, October 11, 2007)

Plain-English summary

MSHA's assessment proposed penalties for 23 citations and orders at Progress Coal's Twilight surface mine. Progress said the assessment was addressed to an employee who had left the company the prior year and that an unknown person signed the return receipt. The safety director learned of the assessment only after it appeared as delinquent in MSHA's database, and the Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to decide whether those notice problems established good cause and justified reopening.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The 23-item penalty assessment was remanded for a good-cause and reopening determination.
• Key point: Delivery addressed to a former employee and signed by an unknown person requires factual review before the operator is held to a final 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

October 11, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PROGRESS COAL

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Docket No. WEVA 2007-835
A.C. No. 46-08645-120911

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 September 17, 2007, the Commission received from Progress Coal (“Progress”) 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).

In early July 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued assessment No. 000120911 to Progress, proposing penalties for 23 citations and orders that had been issued earlier in the year at Progress’ Twilight MTR Surface Mine. Progress’ Safety Director states that the proposed assessment was addressed to an employee who had left Progress in 2006, and that the signature on the Domestic Return Receipt returned to MSHA was that of a person not known to have been employed by Progress. The Safety Director explains that he did not learn of the proposed penalties until they were listed as delinquent in MSHA’s data retrieval system. The Secretary states that she does not oppose Progress’ 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 Progress’ 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 Progress’ 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

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

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