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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: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On July 19, 2022, the Commission received from Peabody 

Gateway North Mining, LLC (“Peabody”) a motion seeking to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine 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 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

v.

PEABODY GATEWAY NORTH 

 MINING, LLC 

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Docket No. LAKE 2022-0215

A.C. No. 11-03235-552654

March 13, 2023
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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 on April 18, 2022, and became a 

final order of the Commission on May 18, 2022. Peabody asserts that its safety manager, who 

processes payments was on vacation and did not return until April 25, 2022. In his

absence, the mine controller was instructed to pay the penalties for all the citations except for the 

one in question. The operator further asserts that, upon the safety manager’s return, he failed to

file the contested citation due to staffing shortages, a reportable mine injury, and other duties he 

had to cover. He was made aware of his mistake in not filing when he received a delinquency 

notice on July 5, 2022 and promptly filed a motion to reopen with the Commission. The 

Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure 

that future penalty contests are timely filed. 

Having reviewed Peabody’s request and the Secretary’s response, we find that the safety 

manager acted in good faith with excusable neglect by inadvertently failing to file the notice of 

contest due to the staffing shortages and other intervening events occuring at the mine. In the 

interest of justice, we hereby reopen this matter and remand it 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. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Arthur M. Wolfson, Esq.

Fisher & Phillips LLP

Six PPG Place, Suite 830

Pittsburgh, PA 15222

awolfson@fisherphillips.com

Emily Toler Scott, Esq.

Counsel, Appellate Litigation

Division of Mine Safety and Health

Office of the Solicitor

U.S. Department of Labor

201 12th Street South – Suite 401 

Arlington, VA 22202-5450

Scott.Emily.T@dol.gov

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

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