**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON,D.C. 20004‐1710**

 

 

SECRETARY OF LABOR,                             :

  MINE SAFETY AND HEALTH                  :

  ADMINISTRATION (MSHA)                     :

                                                                         :

                        v.                                              :         Docket No.  WEVA 2022-0470

                                                                         :         A.C. No. 46-09297-552215

BLUE CREEK MINING, LLC                        :

 

 

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. (2012) (“MineAct”). On July 18, 2022, the Commission received from Blue Creek Mining, LLC 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), 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).

 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicates that the proposed assessment was delivered to the operator on April8, 2022. The assessment became a final order of the Commission on May 9, 2022,and MSHA issued a delinquency notice on June 23, 2022. 

 

Blue Creek states that it is unclear exactly when it received theproposed assessment but notes that near the deadline to file the notice ofcontest in this case, its Corporate Safety Director, who usually files noticesof contest, left the company on April 22, 2022. It contends that the outgoingDirector did not file the required notice of contest, nor did he notify anyother employee of the impending deadline. When a paralegal for Blue Creeklearned of the oversight, the operator quickly retained counsel to file therequired contest. Blue Creek has notfiled any other motions to reopen with the Commission in the last two years.[1]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in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’sprocedural rules.

 

Havingreviewed Blue Creek’s request and the Secretary’s response, we find that due tomistake, inadvertence or excusable neglect the penalty assessment was nottimely contested. *See Noranda Alumina, LLC*, 39 FMSHRC 441, 445 (Mar.2017) (when the safety director left the company unexpectedly, the failure totimely contest constituted an inadvertent mistake). Moreover, we note that BlueCreek promptly filed its motion to reopen upon notification that the penaltieswere delinquent. 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.

 

 

 

 

/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:**

 

Jonathan R. Ellis, Esq.

Colton C. Parsons, Esq.

Steptoe & Johnson PLLC

707 Virginia Street East,Chase Tower, 17th Floor

Charleston, WV 25301

jonathan.ellis@steptoe-johnson.com

colton.parsons@steptoe-johnson.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

----

[1]Blue Creek’s motion reflects that it relied onthe same corporate personnel to file notices of contests of proposed civilpenalties as Rockwell Mining, LLC, a separate subsidiary of Blackhawk Mining,LLC. On June 29, 2023, the Commission issued an Order noting that Rockwell’srecent history of filing motions to reopen, if considered cumulatively, “mayindicate an inadequate or unreliable internal processing system.” *RockwellMining, LLC*, Order at 3. The Commission thus warned Rockwell that it “willclosely scrutinize any future motions to reopen . . . for signs of aninadequate processing system.” *Id*. Because the two subsidiaries rely onthe same processes and personnel, Blue Creek is now also on notice.