Secretary of Labor v. Taishan Coal, LLC

Plain-English summary

Taishan Coal asked the Commission to reopen three final penalty assessments covering 18 citations and orders with proposed penalties totaling $78,622. The company said it failed to forward the assessments to its third-party safety consultant and that there were miscommunications about which penalties to pay or contest. The Commission found those general statements insufficient because Taishan did not give a detailed account of the failures or explain how its changed procedures would prevent recurrence. Taishan also offered no explanation for waiting approximately seven months, two months, and one month after the respective delinquency notices before moving to reopen. The Commission denied the motion with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the three final penalty assessments was denied with prejudice.
• Key point: General claims of miscommunication do not justify reopening when the operator supplies no detailed account and does not explain its delay after delinquency notices.

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.

TAISHAN
COAL, LLC

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Docket
No. WEVA 2023-0553

A.C.
No. 46-08438-567590

Docket
No. WEVA 2023-0554

A.C.
No. 46-08438-575849

Docket
No. WEVA 2023-0555

A.C.
No. 46-08438-577887

BEFORE: Jordan, Chair; Althen, Rajkovich, Baker, and Marvit
Commissioners

ORDER

BY: THE COMMISSION

        These

cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). [1]
On September 27, 2023, the Commission received from Taishan Coal, LLC
(“Taishan”) a motion to reopen final orders of the Commission pursuant to
section 105(a) of the 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).

        According

to the records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”), Docket No. WEVA 2023-0553 concerns 13 citations that were assessed a
total proposed penalty of $3,501. The assessment was delivered to Taishan on
December 7, 2022, and became a final order on January 8, 2023. On February 21, 2023,
MSHA sent the operator a delinquency notice. On September 21, 2023, MSHA received
full payment for the penalties at issue. [2]

Docket No. WEVA 2023-0554 concerns 3
citations that were assessed a total proposed penalty of $12,383. The
assessment was delivered to Taishan on May 10, 2023, and became a final order
on June 9, 2023. On July 25, 2023, MSHA sent Taishan a delinquency notice. Docket
No. WEVA 2023-0555 concerns 2 orders that were assessed a total proposed
penalty of $62,738. The assessment was delivered to Taishan on May 30, 2023,
and became a final order on June 29, 2023. On August 14, 2023, MSHA sent the
operator a delinquency notice.

After failing to receive payment for the
latter two cases, on October 20, 2023, MSHA issued a citation to Taishan
alleging that the operator had failed to pay delinquent penalties. On November
1, 2023, MSHA received full payment. [3]

Prior to paying, Taishan first filed a
motion to reopen. Taishan represents that it filed the motion after receiving a
letter from MSHA related to its delinquent debts. Taishan states that it failed
to timely file because it did not forward the assessments to its third-party
safety consultant, Brent Prichard. Mr. Prichard submitted an affidavit stating
that there were “miscommunications” regarding which penalties would be paid or
contested. Mot at 1-2 (citing Ex. A). The Secretary opposes the operator’s
motion, contending that it did not provide sufficient information to justify
reopening and the filing of the motion was untimely.

When filing a motion to reopen before the
Commission the operator bears the burden of showing exceptional circumstances. Lone
Mountain Processing, Inc ., 35 FMSHRC 3342, 3345 (Nov. 2013). Relief under
Rule 60(b) requires more than “general assertions or conclusory statements as
to why an operator failed to timely contest.” Sw. Rock Prods. , 45 FMSHRC
747, 748 (Aug. 2023) ( citing Atlanta Sand & Supply Co ., 30 FMSHRC
605, 608 (July 2008)). “At a minimum, the applicant for such relief must
provide all known details, including relevant dates and persons involved, and a
clear explanation that accounts, to the best of the operator’s knowledge, for
the failure to submit a timely response and for any delays in seeking relief
once the operator became aware of the delinquency or failure. . . .” Lone
Mountain, 35 FMSHRC at 3345 (citations omitted).

We conclude that the operator has failed
to sustain its burden of demonstrating exceptional circumstances with a
detailed account of its failure to timely file. The bare assertion that it
failed to forward assessments—in three separate cases—does not demonstrate good
cause for a failure to timely file. Sw Rock Prod., Inc ., 45 FMSHRC at 748
(General assertions or conclusory statements are insufficient to justify relief
from a final order before the Commission pursuant to Rule 60(b)) (citation
omitted). Additionally, while the operator represents that it has made changes
to its internal procedures to prevent the reoccurrence of the error, it neither
explains what those procedures are or how the error will be corrected. [4]

Furthermore, the operator makes no attempt
to account for its delay in filing to reopen once it was notified of its
delinquency. See,
e.g., Left Fork Mining Co ., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co. ,
31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more
than 30 days after receipt of notice of delinquency must explain the reasons
why the operator waited to file a reopening request, and lack of explanation is
grounds for the Commission to deny the motion). Here,
the operator delayed filing a motion for approximately seven months, two
months, and one month respectively after receiving notice of its delinquent
status. Taishan provides no explanation to account for its delay. Based
upon these reasons, Taishan’s motion is DENIED with prejudice.

/s/ Mary Lu Jordan

                                                                                Mary

Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Christopher
D. Pence Esq.

Hardy
Pence PLLC

10
Hale Street, 4 th Floor

PO
Box 2548

Charleston,
WV 25329

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] The Commission
consolidates these proceedings pursuant to Commission Procedural Rule 12, 29
C.F.R. § 2700.12, for the limited purpose of addressing the motion to reopen.

[2] The Secretary
states that because the operator paid the penalties in Docket No. WEVA
2023-0553 its motion to reopen is moot for that case.

[3] The Secretary
represents that because the operator paid the penalties at issue in Docket Nos.
WEVA 2023-0554 and WEVA 2023-0555 in response to the Secretary’s issuance of the
citation, their motion is not moot for purposes of those two dockets.

[4]
On August 1,
2023, Taishan filed a motion to reopen a separate case (Docket No. WEVA
2023-0461) before deciding to pay the penalties at issue and filing a motion to
withdraw. Repetitive errors tend to demonstrate inadequate or unreliable
procedures. Where a failure to contest a proposed assessment results from an
inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. See, e.g., Shelter Creek
Capital, LLC , 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC ,
33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co ., 32 FMSHRC 1155, 1156
(Sept. 2010).