INR-WV Operating, LLC (Commission decision, September 28, 2011)

Plain-English summary

INR-WV asked the Commission to reopen a penalty assessment that became final when its human resources department failed to forward the contest form to the safety director. The Secretary opposed reopening and noted that the company waited about three and a half months after receiving a delinquency notice before filing its request. The Commission found that the unexplained delay left the operator without a sufficient basis for relief. It denied reopening without prejudice and allowed a renewed, better-supported request within 30 days. Chairman Jordan and Commissioner Cohen would have denied the request with prejudice.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Reopening was denied without prejudice, with 30 days allowed for a renewed request.
• Key point: An operator seeking relief from a final penalty assessment must specifically explain not only the missed contest deadline but also any later delay after receiving a delinquency notice.

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

September 28, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

INR-WV OPERATING, LLC

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Docket No. WEVA 2010-1421

A.C. No. 46-09217-207483

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY: Duffy, Young, and Nakamura, Commissioners

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 2, 2010, the Commission received a motion by counsel to reopen a penalty assessment issued to INR-WV Operating, LLC (“INR-WV”) that became 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).

On December 30, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000207483 to INR-WV. INR-WV asserts that, although the contest form was received and signed for by an individual in its Human Resources Department, it was mistakenly never delivered to its Safety Director for contest.

The Secretary opposes INR-WV’s request to reopen because its explanation is conclusory and because an unreliable internal procedure does not provide adequate grounds for reopening. The Secretary also notes that a delinquency notice was sent to the operator on April 8, 2010, more than three and a half months before it filed its reopening request, and the case was referred to the Treasury Department for collection on July 8, 2010. She also submits that in March 2010, INR-WV sought reopening in two other cases (Docket Nos. WEVA 2010-788 and WEVA 2010-810), which underscores the breakdown in the operator’s internal procedures. The Secretary further asserts that during the preparation of the March motions to reopen, the operator or its counsel should have learned that this case had also become a final order that was delinquent.

Having reviewed INR-WV’s request to reopen and the Secretary’s response thereto, we agree that the operator has failed to provide a sufficient basis for the Commission to reopen the penalty assessment. In particular, INR-WV has failed to adequately explain why it delayed approximately three and a half months in responding to the delinquency notice sent by MSHA.

Accordingly, we hereby deny without prejudice INR-WV’s request to reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that INR-WV may submit another request to reopen the assessment.

Any amended or renewed request by the operator to reopen this assessment must be filed within 30 days of this order. Any such request filed after that time will be denied with prejudice.

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Chairman Jordan and Commissioner Cohen, dissenting:

Because the operator’s explanation for the late-filed penalty contest lacks specific information, and because there was a delay of approximately three and a half months from the operator’s receipt of the delinquency notice until the motion to reopen was filed, we would deny this motion with prejudice.

/s/______

Mary Lu Jordan, Chairman

/s/______

Robert F. Cohen, Jr., Commissioner

Distribution:

Matthew H. Nelson, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

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