Secretary of Labor v. Mettiki Coal WV, LLC (Commission decision, October 19, 2020)

Plain-English summary

Mettiki Coal sought to reopen a penalty assessment after its new safety director sent the contest notice to the parent company instead of filing it with MSHA. The director assumed the parent company would forward the notice and did not know that it needed authorization to act for Mettiki. He discovered the error after receiving a delinquency notice. Mettiki said it had changed its procedures, and the Secretary did not oppose reopening. The Commission found that the unfamiliarity with internal protocols was unlikely to recur, reopened the assessment, and remanded the matter for further proceedings.

Decision snapshot

• Cited authority: None
• Outcome: The final penalty assessment was reopened and remanded for further proceedings.
• Key point: A new safety director's documented internal-routing mistake supported reopening when corrective steps made repetition unlikely.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA)          

v.

METTIKI
COAL WV, LLC

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:

:

:

:

:

:

Docket
No. WEVA 2019-0392

A.C.
No. 46-09028-481238

BEFORE:  Rajkovich,
Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On April 12, 2019, the Commission received from Mettiki Coal WV, LLC (“Mettiki”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on January 15, 2019, and became a final order of the Commission on February 14, 2019. Mettiki asserts that the operator’s safety director, who had only recently taken on the position, sent the notice of contest to Mettiki’s parent company on or about January 17, 2019. He assumed that the notice of contest would be forwarded to MSHA, and was unaware that the parent company required authorization to act on Mettiki’s behalf. The safety director learned that the notice of contest had not been properly filed upon receiving a delinquency notice, on or about April 8, 2019. Mettiki asserts that steps have been taken to ensure that such an error will not recur. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having
reviewed Mettiki’s request and the Secretary’s
response, we find that the mistake in this instance was the result of a new safety director’s unfamiliarity with internal protocols, and is unlikely to be repeated. In the interest 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/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution:

Tyler
H. Fields, Esq.

Corporate
Counsel

Mettiki
Coal WV, LLC

[email protected]

Emily
Scott, Esq.

Office
of the Solicitor

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

[email protected]