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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

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

 

ORDER

BY THE COMMISSION: 

These matters 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 received from CoalMac, LLC (“Coal-Mac”) a motion seeking to reopen five penalty assessment proceedings and 

relieve it from the Default Orders entered against it.1 

In each of the captioned proceedings, the Chief Administrative Law Judge issued an 

Order to Show Cause in response to Coal-Mac’s perceived failure to answer the Secretary of 

Labor’s Petition for Assessment of Civil Penalty. The Secretary filed the relevant petitions on 

March 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 issued Orders to 

Show Cause on May 16, May 30 and June 5, 2023, respectively, which were deemed Default 

Orders on June 16, June 30 and July 6, 2023, when it appeared that the operator had not filed an 

answer within 30 days. 

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 For the limited purpose of addressing these motions to reopen, we hereby grant the 

Secretary’s motion to consolidate the captioned docket numbers involving similar procedural 

issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

COAL-MAC LLC

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Docket No. WEVA 2023-0154 

A.C. No. 46-08249-569568 

Docket No. WEVA 2023-0155 

A.C. No. 46-08984-569574 

Docket No. WEVA 2023-0156 

A.C. No. 46-09075-569575 

Docket No. WEVA 2023-0192 

A.C. No. 46-08918-571114 

Docket No. WEVA 2023-0196 

A.C. No. 46-08249-571110 

January 25, 2024
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Coal-Mac asserts, without further detail, that the captioned proceedings are in default 

because its Safety Manager was unfamiliar with the contest process and made mistakes. The 

Secretary opposes the request to reopen. The Secretary argues that the claim of “error” is 

insufficiently detailed to justify reopening, and that the Safety Manager’s lack of familiarity 

with the contest process indicates inadequate internal procedures. The Secretary also claims 

the proceedings are moot because the relevant penalties have all since been paid. Finally, the 

Secretary argues that the operator failed to identify facts that, if proven on reopening, would 

constitute a meritorious defense. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.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 for discretionary 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 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final 

decision of the Commission.

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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

However, we emphasize that the party seeking to reopen a final penalty bears the burden 

of showing that it is entitled to such relief, through a detailed explanation of its failure to timely 

respond. Revelation Energy, LLC, 40 FMSHRC 375, 375-76 (Mar. 2018). General assertions or 

conclusory statements are insufficient. Southwest Rock Prod., Inc., 45 FMSHRC __, No. WEST 

2021-0275 (Aug. 30, 2023). At a minimum, the applicant 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. Higgins Stone Co., 32 

FMSHRC 33, 34 (Jan. 2010). Here, Coal-Mac provides only a cursory explanation for its failure 

to respond to the Secretary’s Petition and Chief Judge’s Order, simply stating that the safety 

manager was unfamiliar 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 it is entitled to 

relief.

We have also held that operators are responsible for properly training all personnel who 

handle proposed assessments, and that failure to properly train such employees indicates an 

inadequate 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). The Commission has made it clear that, where
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an operator fails to properly contest an assessment due to an inadequate or unreliable system, the 

operator has not established 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 new to contesting assessments and lacked the proper knowledge.2 

This strongly suggests that the safety manager did not receive adequate training prior to being 

placed in charge of this task. 

Having reviewed Coal-Mac’s request and the Secretary’s response, we conclude that the 

operator failed to establish good cause for reopening the captioned proceedings. Coal-Mac’s 

motion to reopen provides no explanation for its failure to timely answer the Petition or respond 

to the Show Cause Order beyond a general statement of “error.” We also find indications of an

inadequate internal processing system. Accordingly, Coal-Mac’s request to reopen is denied 

with prejudice.

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

________________________________ 

Timothy J. Baker, Commissioner 

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 The Secretary questions the validity of Coal-Mac’s claim of inexperience, noting the 

operator’s size and its history of successfully navigating the contest process. While we do not 

question the Safety Manager’s statement that he lacked knowledge regarding the contest process, 

we note that the operator (as a whole) clearly has experience with the process and reiterate that 

operators bear the responsibility of training their personnel. 
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Distribution:

Adam Gross

Safety Manager

Coal-Mac LLC

1245 22 Mine Road

Holden, WV 25625

Adam.gross@jmpholdingsllc.com

Nicholas Smallwood

Safety Manager

Coal-Mac LLC

P.O. Box 1050

Holden, WV 25625-1050

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

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov