**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

** **
| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

BLUE  MOUNTAIN ENERGY, INC.                                             | :

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Docket  No. WEST 2021-0189

A.C.  No. 05-03505-517587

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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).

 

            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 non-opposition. 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. 

 

 

 

 

/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:

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