Secretary of Labor v. Carter Roag Coal Company and Pocahontas Coal Company (Commission decision, May 31, 2013)

Plain-English summary

Carter Roag Coal Company and Pocahontas Coal Company missed deadlines to contest three penalty assessments. A mine explosion left their safety department without power and communications from June 29 through July 7, disrupting the companies' normal contest-processing procedures. MSHA received all three contests on July 25 and later issued late notices. The Secretary did not oppose reopening but urged the operators to ensure future contests were timely filed. The Commission reopened the three assessments in the interests of justice and remanded them for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: Three final assessments were reopened and remanded, with penalty petitions due within 45 days.
• Key point: A documented power and communications outage caused by a mine explosion supported reopening when it disrupted established contest-processing procedures.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 31, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

CARTER ROAG COAL COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

v.

POCAHONTAS COAL COMPANY

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

Docket No. WEVA 2012-1633

A.C. No. 46-08194-291394

Docket No. WEVA 2012-1634

A.C. No. 46-07191-292169

Docket No. WEVA 2012-1635

A.C. No. 46-08266-292171

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On August 21, 2012, the Commission received from Carter Roag Coal Company (“Carter”), and Pocahontas Coal Company (“Pocahontas”) (collectively “the operators”) three motions seeking to reopen three penalty assessments that had become final orders 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).

MSHA’s record indicates that Carter’s proposed assessment was delivered on June 12, 2012, and became a final order of the Commission on July 12, 2012. Pocahontas’s proposed assessments were delivered on June 19, 2012, and became final orders of the Commission on July 19, 2012. MSHA received contests dated July 25, 2012 for all three proposed assessments, and mailed late notices on August 3, 2012. The operators assert that a mine explosion left their safety department without power and communication from June 29 until July 7, 2012. Because of the explosion the operators were not able to follow their standard procedures for the timely processing of contest forms. The Secretary does not oppose the requests to reopen, and urges the operators to take steps to ensure that future penalty contests are timely filed.

Having reviewed the operators’ requests and the Secretary’s responses, in the interests of justice, we hereby reopen these matters and remand them 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

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Robert H. Beatty, Jr., 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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710