**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.

 

PRAIRIE  STATE GENERATING 

  COMPANY  LLC,                                               | :

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Docket  No. LAKE 2023-0038

A.C.  No. 11-03193-559468

 

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

**ORDER**

 

BY THE COMMISSION:

            Thiscase arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On November 18, 2022, the Commission receivedfrom Prairie State Generating Company LLC (“Prairie”) a motion to reopen a finalorder 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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to the operator on August 8,2022, and became a final order of the Commission on September 7, 2022. OnAugust 17, 2022, Prairie paid the proposed civil penalty for 19 of the 23citations at issue in the assessment. Praire asserts that on that day it alsomailed a notice of contest, reflecting its intent to contest the remaining fourcitations and civil penalties. On October 24, 2022, MSHA sent the operator adelinquency notice after failing to receive Prairie’s notice of contest. OnNovember 18, 2022, Prairie filed a motion to reopen the four citations that itoriginally sought to contest, stating that it mailed the form to the wrongaddress or otherwise made a mistake in mailing it. The Secretary of Labor doesnot oppose the operator’s motion, but reminds Prairie to ensure that futurecontests are timely mailed to MSHA’s Civil Penalty Compliance Office inArlington, Virginia. 

 

Having reviewed Prairie’s request and the Secretary’s response, we find that theoperator has demonstrated that its failure to timely file was the result of amistake. In the interest of justice, we herebyreopen Citation Nos. 9199089, 9199090, 9196779, and 9199099 and remand the case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

 

 

 

/s/ Timothy J.Baker

Timothy J. Baker,Commissioner 

 

 

Distribution:

 

PhilipK. Kontul, Esq. 

Ogletree,Deakins, Nash, Smoek & Stewart, P.C. 

OnePPG Place, Ste. 1900

Pittsburgh,PA 15222

Philip.kontul@ogletree.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

FederalMine Safety Health Review Commission

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov