**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:     Jordan,Chair; Althen and Rajkovich, Commissioners 

 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On May 2, 2023, the Commission received from GCCDacotah, Inc. (“GCC Dacotah”) a motion seeking to reopen a penalty assessmentthat had become a final order of the Commission pursuant to section 105(a) ofthe Mine Act, 30 U.S.C. 

§815(a). 

 

Under section 105(a) of the Mine Act, anoperator who wishes to contest a proposed penalty must notify the Secretary ofLabor no later than 30 days after receiving the proposed penalty assessment. Ifthe operator fails to notify the Secretary, the proposed penalty assessment is deemeda final order of the Commission. 30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontestedassessments that have become final Commission orders under section 105(a). *JimWalter Res., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). 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”); *JWR*,15 FMSHRC at 787. We have also observed that default is a harsh remedy andthat, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may bereopened 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 MineSafety and Health Administration (“MSHA”) indicate that the proposed assessmentwas delivered on March 6, 2023, and became a final order of the Commission on April5, 2023. The Secretary of Labor does not oppose the request to reopen.

 

GCC Dacotah contends that it timelycontested the proposed assessment on March 24, 2023, but service to theSecretary was unsuccessful due to a typo in MSHA’s email address. Payment forthe uncontested citations was timely received on April 5, 2023. GCC Dacotahclaims that its email system did not provide an error notification that theemail containing the contest had not been delivered. On April 24, a few weeksafter the penalties became a final order, GCC Dacotah contacted MSHA andlearned that its contest had been sent to an incorrect email address. Toprevent the error from recurring, GCC Dacotah circulated a memorandum identifyingthe error to its safety personnel.

 

We note that the motion to reopen wastimely filed. The Commission has previously heldthat “[m]otions to reopen received within 30 days of an operator’s receipt ofits first notice from MSHA that it has failed to timely file a notice ofcontest will be presumptively considered as having been filed within areasonable amount of time.” *Highland Mining Co.,*31 FMSHRC 1313, 1316-17(Nov. 2009). Here, the motion to reopen was filed on May 2, 2023, within30 days of the operator learning that it had sent its contest to an incorrectaddress. Therefore, the motion to reopen was filed within a reasonable amountof time.

 

              We recognize that theoperator previously filed motions to reopen in May 2020. However, in thoseinstances, the operator’s failure to timely contest the assessments resultedfrom incorrect assumptions regarding who bore responsibility for mailing thecontest forms to MSHA. In our prior Commission order disposing of theserequests to reopen, we noted briefly that the operator claimed that twoassessments had not been timely contested because of “an improper understandingand implementation of an internal procedure” regarding which employee boreresponsibility for contesting assessments. *GCC Dacotah, Inc.,*43 FMSHRC61 (Jan. 2021).[1]  In contrast, in thismatter, the operator’s failure to timely contest the assessment resulted froman error in entering an email address. 

 

While multiple repeated processing errors ofthe same nature can reflect an inadequate internal processing system, *LoneMountain,*35 FMSHRC 3342 (Nov. 2013) (emphasizing the repeated misplacementof paperwork by the operator), a unique occurrence that results in anoperator’s failure to timely contest an assessment does not necessarily reflectthat the internal processing system was ineffective. *Noranda,*39 FMSHRC441 (Mar. 2017).**There is no evidence in the record of prior instancesof GCC Dacotah failing to timely contest an assessment as a result ofincorrectly entering MSHA’s email address. Therefore, we find such an error tobe a unique occurrence, rather than the result of an inadequate processingsystem. In addition, we note that the Secretary has not alleged that GCCDacotah acted in bad faith. Furthermore, GCC Dacotah demonstrated its goodfaith by promptly filing the motion to reopen, and by taking precautions toprevent a recurrence of this error.  

* *

* *

            Havingreviewed GCC Dacotah’s request and theSecretary’s response, we find that GCC Dacotah demonstrated good causefor its failure to timely respond, and acted in good faith. In the interest of justice, we hereby reopen thismatter and remand it to the Chief Administrative Law Judge for furtherproceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretaryshall file a petition for assessment of penalty within 45 days of the date ofthis order. *See* 29 C.F.R. 

§2700.28.

 

 

 

                                                                                    /s/Mary Lu Jordan

MaryLu Jordan, Chair

 

 

 

/s/William I. Althen

WilliamI. Althen, Commissioner 

 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

** **

**Commissioner Baker, dissenting:**

I would find that GCC Dacotah failed toestablish good cause to reopen in this case.

 

            Aparty seeking the reopening of an assessment bears the burden of establishingthat the default was the result of more than mere carelessness. *NorandaAlumina, LLC*, 39 FMSHRC 441, 443 (Mar. 2017). The Commission has consistentlyheld that where a failure to contest a proposed assessment results from aninadequate or unreliable internal processing system, the operator has notestablished grounds for reopening an assessment. *See**Pinnacle MiningCo.*, 30 FMSHRC 1061, 1062 (Dec. 2008); *Moose Lake Aggregates*,34 FMSHRC 1 (Jan. 2012); *Kuhlman Constr.*, 34 FMSHRC 2894 (Nov. 2012); *EnviroCare, Inc.*, 39 FMSHRC 819 (Apr. 2017). When deciding whether an operator hasmade a showing of good cause to reopen, the Commission considers, “proceduresto prevent, identify and correct such mistakes have been adopted or changed, asappropriate.” *Noranda Alumina,*39 FMSHRC at 443. In short, an operatorcan demonstrate that it is not careless by setting forth in its motion toreopen new or improved procedures that it will implement to ensure that itsinternal processing system is adequate and reliable in the future. 

 

In May 2020, GCC Dacotah filed a motion toreopen after it had failed to timely contest a penalty. *GCC Dacotah, Inc.*,43 FMSHRC 61 (Jan. 2021). According to the Commission at that time, “GCCDacotah’s motion says that the proposed assessments in these matters were nottimely contested due to an *improper understanding and implementation of aninternal procedure*.” *Id*. at 62 (emphasis added). 

 

In its motion to reopen in that case, GCCDacotah asserted that it had made changes to its internal processing system toensure that it did not miss deadlines in the future. Specifically, GCCDacotah’s motion included a declaration signed by its Corporate Safety Directorsetting forth changes the company made to ensure that assessments were properlyprocessed. Paragraph 18 of that declaration, in relevant part, states:  

 

In response to itsfact-finding investigation, GCC has taken steps to prevent a reoccurrence. Specifically,GCC is designating the plant safety manager as the company official responsiblefor executing and filing the contest form in a timely manner. On May 27, 2020,I sent out an email to all of the safety managers at GCC's MSHA-regulatedfacilities . . . providing instructions on contest procedures.

 

Basedon this representation, the Commission granted the Motion to Reopen.

 

In its current motion, GCC Dacotah assertsthat an administrative error prevented it from timely filing a contest to theassessment. However, this motion states that the mistake occurred when anemployee—a “safety technician” rather than the Plant Manager—entered anincorrect email address for MSHA when sending in GCC Dacotah’s contest. Onceagain, GCC Dacotah has made representations that it will take actions toprevent this administrative error from recurring. Specifically, GCC Dacotahstates it forwarded a memo to safety personnel regarding the error. 

             Thecircumstances set forth in GCC Dacotah’s filings demonstrate a lack of goodcause to reopen. In 2020, GCC Dacotah was on notice that its processing systemwas not reliable and could result in mistakes. It promised to correct itsprocessing system by ensuring that a plant safety manager would execute andfile future contest forms in a timely manner. The Commission accepted that withthe promised improvements, GCC Dacotah’s internal processing system would bereliable and, therefore, found good cause to reopen. 

 

However, GCC Dacotah’s current motion toreopen shows that it failed to live up to its promise. A safety technician,rather than the Plant Manager, processed the company’s contest documents.[2] As a result ofGCC Dactoah’s failure to follow the improvements outlined in its 2020 Motion toReopen, its processing system remains evidently unreliable.[3] The fact that themistake alleged here is slightly different than previous mistakes is irrelevant:GCC Dacotah was on notice that it needed to ensure that its processing systemwas reliable, not that it needed to correct a single, discrete issue. Further,I do not believe their promises to correct the problem in the future to bepersuasive, as they have already made similar promises and failed to keep themin the past. Therefore, I would find that GCC Dacotah has failed to establishthat it is entitled to the “extraordinary” relief of reopening*. See LoneMountain Processing, Inc.*, 35 FMSHRC 3342 (Nov. 2013) (characterizingreopening as extraordinary relief).  

 

Inlight of these circumstances I, respectfully, dissent.

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

 

 

Distribution:

DonaldMousel

SafetyTechnician

GCCDacotah, Inc.

501N. St. Onge

RapidCity, SD 57702 

dmousel@gcc.com

 

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] We decided togrant these requests to reopen. *Id.*

 

[2] As the partyseeking reopening and bearing the burden of demonstrating good cause, GCCDacotah also bears of the burden of showing that it followed, or attempted tofollow, the processing procedures it put in place. It has not done so here.

 

[3] I would find thatGCC Dacotah’s failure to timely file a contest in this instance clearlydemonstrates an inadequate or unreliable processing system. This is trueespecially in light of the representations made in the company’s May 2020motion to reopen. However, I would also take judicial notice of two subsequentMotions to Reopen from GCC Dacotah (CENT 2023-0229 and CENT 2023-0230) whichassert that the company committed the same mistake—an incorrect email addressused on the contest form—and is entitled to reopening. These motions are stillpending before the Commission. These motions provide additional support for theposition that the mistake in this case was not isolated, but instead part of anunreliable system that did not ensure that contests were properly forwarded toMSHA. Repeated instances of the same clerical error do not warrant relief. *SeeMarfork Coal Co., LLC*, 2023 WL 4052208, at*2 (FMSHRC June 7, 2023).