**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA)            

 

                        v.

 

EAGLE  ROCK, INC.                                             | :

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Docket  No. WEST 2023-0012

A.C.  No. 04-04900-559854

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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 October 18, 2022, the Commission receivedfrom Eagle Rock, Inc. (“Eagle”) 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 August 8, 2022. On September7, 2022, the proposed assessment became a final order of the Commission. OnOctober 12, MSHA received a partial payment of the assessment for 10 of the 14citations listed on the assessment. 

 

Eagle asserts that it believed that itscontest of the penalty assessment was due by September 9, 2022, two days afterthe assessment became a final order. The operator states that when it contactedMSHA’s Civil Penalty Compliance Office, it was advised that the contest waslate, and that Eagle would receive correspondence regarding the untimeliness. OnOctober 11, 2022, after having failed to receive the correspondence, Eagle againcontacted MSHA and subsequently received the letter by email. On that samedate, the operator paid 10 of the 14 proposed penalties listed on the proposedpenalty assessment. 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 Eagle’s request and the Secretary’s response, we find that the delay in filing the penalty contest wasthe result of mistake, satisfying the criteria of Rule 60(b). In the interest of justice, we hereby reopen the penaltiesassociated with Citation Nos. 9507582, 9507586, 9507589, and 9507592 and remandthis matter 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:

Sherrie Zappola

OfficeManager

P.O.Box 1498

Weaverville,CA 96093

Eaglerockest.1980@aol.com

 

LarryE. Yingling

President

P.O.Box 1498

Weaverville,CA 96093

Eaglerockest.1980@aol.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