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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 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). 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

PRAIRIE STATE GENERATING 

 COMPANY LLC,

:

 : 

 : 

 : 

 : 

 : 

 : 

:

Docket No. LAKE 2023-0038 

A.C. No. 11-03193-559468 

September 13, 2023
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 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. 

 

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

_________________________________ 

Timothy J. Baker, Commissioner 
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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