Ten-Mile Coal Company, Inc. (Commission decision, September 26, 2011)

Plain-English summary

Ten-Mile Coal mailed its contest two days late after its office manager misplaced the proposed assessment. The operator moved to reopen within ten days of MSHA's delinquency letter, said this was its first late contest since operations began in 2007, and created a computer system to prevent recurrence. The Secretary did not oppose relief and confirmed payment of the uncontested citations. The Commission reopened the assessment in the interests of justice, remanded the matter, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The two-day-late contest was reopened and remanded for further proceedings.
• Key point: A short delay caused by an isolated processing mistake may support reopening when the operator acts quickly and adopts a corrective system.

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 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

TEN-MILE COAL COMPANY, INC.

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Docket No. WEVA 2011-2107

A.C. No. 46-09060-253336

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On July 21, 2011, the Commission received from Ten-Mile Coal Company, Inc. (“Ten-Mile”) 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 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).

The record indicates that the proposed assessment was delivered on May 23, 2011, and became a final order of the Commission on June 22, 2011. Ten-Mile mailed a contest to MSHA two days late, on June 24, 2011. MSHA’s delinquency letter was mailed July 11, 2011, and the motion to reopen was filed within 10 days, on July 21, 2011. Ten-Mile asserts its Office Manager misplaced the assessment and only discovered it on June 23, 2011. The Office Manager further states she believes this was the first contest filed untimely since the company began operations in 2007, and that she has created a computer system for processing assessments in the future. The Secretary does not oppose the request to reopen and notes that MSHA received payment for the uncontested citations.

Having reviewed Ten-Mile’s request and the Secretary’s response, in the interests 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, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Rebecca S. Cato, Secretary/Treasurer

Steyer Fuel Mining Company, Inc.

P.O. Box 549

Dellsolow, WV 26531

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

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

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