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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 April 22, 2021, the Commission received from Blue 

Mountain Energy, Inc. (“Blue Mountain”) 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 

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. 

BLUE MOUNTAIN ENERGY, INC.

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: 

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Docket No. WEST 2021-0189 

A.C. No. 05-03505-517587 

April 17, 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 on July 13, 2020. On August 4, 

2020, MSHA received a partial payment of the assessment. The remainder of the assessment 

became a final order of the Commission on August 12, 2020. On September 28, 2020, MSHA 

sent the operator a delinquency notice. 

Blue Mountain asserts that it intended to contest Citation No. 9030973 ever since the 

citation at issue was upheld during a safety and health conference on June 17, 2020. However, 

on July 16, 2020, Blue Mountain claims that it inadvertently mailed the contest to the Federal 

Mine Safety and Health Review Commission and to a Conference Litigation Representative 

rather than to the correct MSHA address. 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 Blue Mountain’s request and the Secretary’s response, we find there is 

sufficient evidence that mistakes were made, thus satisfying the Rule 60(b) criteria. We find that 

Blue Mountain acted in good faith, as demonstrated by its explanation for its failure to timely 

contest the assessment, its earlier efforts to engage in a conference, and the Secretary’s nonopposition. In the interest of justice, we hereby reopen the penalty for Citation No. 9030973 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:

Christopher G. Peterson

Fisher & Phillips LLP

1125 17th Street, Suite 2400

Denver, CO 80202

cpeterson@fisherphillips.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 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov