Eastern Associated Coal, LLC

Plain-English summary

Eastern Associated Coal asked the Commission to reopen a penalty assessment that became final while its general manager was unexpectedly hospitalized. The manager said he forwarded the assessment to the safety manager immediately after discovering it, and the company then filed a contest. The Secretary did not oppose reopening but noted that Eastern lacked a backup procedure for processing assessments during the manager's absence. The Commission reopened the assessment and remanded it, while warning that future late contests could face opposition.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded for proceedings on the merits.
• Key point: An unexpected medical absence supported relief here, but operators should maintain backup procedures for time-sensitive penalty assessments.

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

December 20, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

EASTERN ASSOCIATED COAL, LLC 

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Docket No. WEVA 2012-992

A.C. No. 46-01456-279351

BEFORE: Jordan, Chairman; Young 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 April 19, 2012, the Commission received from Eastern
Associated Coal, LLC (“Eastern”) 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).

MSHA’s record indicates that the proposed assessment was delivered on February 6,
2012, and became a final order of the Commission on March 7, 2012. Eastern asserts that its
general manager was unexpectedly absent from the mine due to hospitalization during February
and March, 2012. Eastern’s general manager states in his affidavit that immediately upon
discovering the proposed assessment, he forwarded it to the safety manager, who contested it on
April 6, 2012. Eastern enclosed a copy of MSHA’s delinquency notice, dated April 12, 2012.

The Secretary does not oppose the request to reopen, and notes that MSHA received a
payment for the uncontested penalties, by check dated April 10, 2012. The Secretary states that
Eastern had no procedure to ensure that proposed assessments were timely processed during the
general manager’s absence, and urges Eastern to adopt such procedures. The Secretary cautions
that she may oppose future motions to reopen penalty assessments that are not contested in a
timely manner.

Having reviewed Eastern’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

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Eric R. Waller

Eastern Associated Coal, LLC

P.O. Box 1233

Charleston, WV 25324

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