**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

KIEWIT  MINING GROUP                                             | :

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Docket  No. WEST 2023-0051

A.C.  No. 10-02177-557454

 

Docket  No. WEST 2023-0053

A.C.  No. 10-02177-559239 |
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BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

**ORDER**

 

BY:Jordan, Chair; Althen and Rajkovich, Commissioners

 

            Thesematters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On November 30, 2022, the Commission receivedfrom Kiewit Mining Group (“Kiewit”) two motions seeking to reopen 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).[1]

 

            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).

 

Kiewit explains that all correspondencefor the mine is automatically routed to the Post Office in Soda Springs, Idaho,where it is held for twice-weekly pickup by a mine employee. 

Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”) andthe U.S. Postal Service indicate the assessment in Docket No. WEST 2023-0051was available for pickup at the Soda Springs Post Office on June 30, 2022, andthe assessment in Docket No. WEST 2023-0053 was available for pickup on July25, 2022. The assessments were returned to the Secretary as unclaimedapproximately two weeks later. The assessments became final orders of theCommission on August 1, 2022, and August 24, 2022, respectively.[2]

 

Delinquency notices were sent to theoperator on October 11 and November 4, 2022.  On November 7, Kiewit reached outto MSHA for more information regarding the status of assessments. MSHA providedthe operator with the USPS delivery date information and copies of theassessments on November 15, and Kiewit filed its motions to reopen on November30. 

 

Kiewit was unable to identify the specificcause of the failure to collect the assessment packages. However, the operatorassures the Commission that its office procedures are normally reliable andthat the Post Office is routinely checked twice a week. Kiewit notes that ithas never before been untimely in filing a notice of contest. The Secretarydoes not oppose the operator’s requests to reopen. 

 

In light of Kiewit’s history, we find thatthis mistake does not indicate an inadequate processing system, and is unlikelyto recur. We also note that the operator followed up with MSHA and filed itsmotions to reopen within a reasonable amount of time.[3]We also recognize that mail delivery during the relevant period was affected bythe unprecedented strain of the COVID 19 pandemic. Having reviewed Kiewit’s requests and the Secretary’s responses, wefind that the operator’s failure to timely file was the result of excusable mistake.

 

 

In the interest 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,Chair

 

 

 

/s/ William I.Althen

William I. Althen,Commissioner 

 

 

 

/s/ Marco M. Rajkovich,Jr.

Marco M.Rajkovich, Jr., Commissioner

 

 

 

CommissionerBaker, dissenting in part: 

 

            Inthis case, Kiewit failed to timely contest the proposed penalty at issue inDocket No. WEST 2023-0051, and then paid the amount owed. For the reasons setforth in my dissent in *Omya Inc.*, 45 FMSHRC __, 2023 WL 2559811 (Mar. 9,2023), I do not believe it is accurate to characterize this action as ajustifiable mistake or excusable neglect. 

 

Therefore, I woulddeny Kiewit’s motion to reopen with respect to Docket No. WEST 2023-0051. 

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

Distribution:

 

EricLauck, Safety Manager

KiewitMining Group

3826Blackfoot River Road

SodaSprings, ID 83276

Eric.lauck@kiewit.com

 

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

Nelson.April@dol.gov

 

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

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

Officeof the Chief Administrative Law Judge

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] For the limitedpurpose of addressing these motions to reopen, we hereby consolidate docketnumbers WEST 2023-0051 and WEST 2023-0053 because they involve similar factualand procedural issues. 29 C.F.R. § 2700.12.

 

[2] The Commissionhas previously found motions to reopen to be moot where an operator neverreceived the relevant assessment. *E.g.*, *Delhur Industries, Inc.*,43 FMSHRC 396 (Aug. 2021). While the assessments at issue here technicallynever reached the operator’s property, we find this case to be distinguishable.The assessments reached the operator’s designated location for all maildelivery, akin to a P.O. Box or off-site office. 

 

[3] The Commissionhas previously held that “[m]otions to reopen received within 30 days of anoperator’s receipt of its first notice from MSHA that it has failed to timelyfile a notice of contest will be presumptively considered as having been filedwithin a reasonable amount of time.” *Highland Mining Co.,*31 FMSHRC1313, 1316-17 (Nov. 2009). Here, the operator was provided with the USPSrecords and copies of the citations on November 15, 2022, and the motions toreopen were filed on November 30, 2022.