**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 

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

            

**ORDER**

 

BY THE COMMISSION:

                                                                                                                                                            

            Thesematters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On August 24, 2023, the Commission receivedfrom Coal-Mac, LLC (“Coal-Mac”) a motion seeking to reopen five penaltyassessment proceedings and relieve it from the Default Orders entered againstit.[1]

 

In each of the captioned proceedings, theChief Administrative Law Judge issued an Order to Show Cause in response toCoal-Mac’s perceived failure to answer the Secretary of Labor’s Petition forAssessment of Civil Penalty. The Secretary filed the relevant petitions onMarch 16 (Docket Nos. WEVA 2023-0154, WEVA 2023-0155, WEVA 2023-0156), March 30(WEVA 2023-0192) and April 4, 2023 (WEVA 2023-0196). The Chief Judge issuedOrders to Show Cause on May 16, May 30 and June 5, 2023, respectively, whichwere deemed Default Orders on June 16, June 30 and July 6, 2023, when itappeared that the operator had not filed an answer within 30 days. 

 

Coal-Mac asserts, without further detail,that the captioned proceedings are in default because its Safety Manager was unfamiliarwith the contest process and made mistakes. The Secretary opposes the requestto reopen. The Secretary argues that the claim of “error” is insufficientlydetailed to justify reopening, and that the Safety Manager’s lack of familiaritywith the contest process indicates inadequate internal procedures. TheSecretary also claims  the proceedings are moot because the relevant penaltieshave all since been paid. Finally, the Secretary argues that the operatorfailed to identify facts that, if proven on reopening, would constitute ameritorious defense. 

                                                

            TheJudge’s jurisdiction in this matter terminated when the default occurred. 29C.F.R.  § 2700.69(b). Under the Mine Act and the Commission’s procedural rules,relief from a Judge’s decision may be sought by filing a petition fordiscretionary review within 30 days of its issuance. 30 U.S.C. §823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not directreview within 40 days of a decision’s issuance, it becomes a final decision ofthe Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here hasbecome a final decision of the Commission.      

 

            Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See*29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe guided so far as practicable by the Federal Rules of Civil Procedure”); *JimWalter Res., Inc.*, 15 FMSHRC 782, 786-89 (May 1993). We have also observedthat default is a harsh remedy and that, if the defaulting party can make ashowing of good cause for a failure to timely respond, the case may be reopenedand appropriate proceedings on the merits will be permitted. *See Coal Prep.Servs., Inc.*, 17 FMSHRC 1529, 1530 (Sept. 1995). 

 

However, we emphasize that the partyseeking to reopen a final penalty bears the burden of showing that it isentitled to such relief, through a detailed explanation of its failure totimely respond. *Revelation Energy, LLC*, 40 FMSHRC 375, 375-76 (Mar.2018). General assertions or conclusorystatements are insufficient. *Southwest Rock Prod.,Inc.*, 45 FMSHRC __, No. WEST 2021-0275(Aug. 30, 2023). At a minimum, the applicant must provide all knowndetails, including relevant dates and persons involved, and a clear explanationthat accounts, to the best of the operator’s knowledge, for the failure tosubmit a timely response. *Higgins Stone Co.*, 32 FMSHRC 33, 34 (Jan. 2010). Here, Coal-Macprovides only a cursory explanation for its failure to respond to the Secretary’sPetition and Chief Judge’s Order, simply stating that the safety manager wasunfamiliar with the contest process and that the proceedings defaulted due to his“error.” We find that Coal-Mac has failed to meet its burden of showing that itis entitled to relief.

 

We have also held that operators areresponsible for properly training all personnel who handle proposedassessments, and that failure to properly train such employees indicates aninadequate or unreliable internal processing system. *Cumberland Contura, LLC*,40 FMSHRC 1129, 1130 (Aug. 2018);*Rogers Group, Inc.*, 39 FMSHRC 1551,1554 (Aug. 2017); *Kentucky Fuel Corp.*, 38 FMSHRC 632, 634 (Apr. 2016). TheCommission has made it clear that, where an operator fails to properly contestan assessment due to an inadequate or unreliable system, the operator has notestablished grounds for reopening. *Oak Grove Res., LLC*, 33 FMSHRC 103,104 (Feb. 2011); *Double Bonus Coal Co.*, 32 FMSHRC 1155, 1156(Sept. 2010); *Highland Mining Co.*, 31 FMSHRC 1313, 1315 (Nov.2009). Here, Coal-Mac asserts that its safety manager erred because he was newto contesting assessments and lacked the proper knowledge.[2]This strongly suggests that the safety manager did not receive adequatetraining prior to being placed in charge of this task. 

 

Havingreviewed Coal-Mac’s request and the Secretary’sresponse, we conclude that the operator failed to establish good causefor reopening the captioned proceedings. Coal-Mac’s motion to reopen providesno explanation for its failure to timely answer the Petition or respond to theShow Cause Order beyond a general statement of “error.” We also findindications of an inadequate internal processing system. Accordingly,Coal-Mac’s request to reopen is denied with prejudice.

 

 

 

/s/Mary Lu Jordan

Mary Lu Jordan,Chai

 

 

 

/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 

 

 

Distribution:

AdamGross

SafetyManager

Coal-MacLLC

124522 Mine Road

Holden,WV 25625

Adam.gross@jmpholdingsllc.com

 

NicholasSmallwood

SafetyManager

Coal-MacLLC

P.O.Box 1050

Holden,WV 25625-1050

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

----

[1] For the limitedpurpose of addressing these motions to reopen, we hereby grant the Secretary’smotion to consolidate the captioned docket numbers involving similar proceduralissues. 29 C.F.R. §2700.12.

[2] The Secretary questionsthe validity of Coal-Mac’s claim of inexperience, noting the operator’s sizeand its history of successfully navigating the contest process. While we do notquestion the *Safety Manager’s* statement that he lacked knowledgeregarding the contest process, we note that the operator (as a whole) clearlyhas experience with the process and reiterate that operators bear theresponsibility of training their personnel.