**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.

 

GREENBRIER  MINERALS, LLC                            | :

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Docket  No. WEVA 2023-0191

A.C.  No. 46-09319-569162 |
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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 February 16, 2023, the Commission receivedfrom Greenbrier Minerals, LLC (“Greenbrier”) 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 January 7, 2023, and became a final order of the Commission onFebruary 6, 2023. The following day, Greenbrier filed its contest of theassessment. A few days later, Greenbrier received a letter from MSHA informingGreenbrier that the contest for the assessment had been untimely filed. OnFebruary 16, 2023, MSHA received partial payment of the assessment.

 

 Greenbrier seeks to reopen the assessmentso that it may contest five citations—Citation Nos. 9590068, 9590072, 9590074,9590087, and 9590088.[1] Greenbriermaintains that its safety specialist miscalculated the deadline to submit thecontest of the assessment as February 7, 2023, resulting in the contest beingfiled one day after the deadline to contest the assessment. The Secretary ofLabor does not oppose the request to reopen.

 

We note that the motion to reopen wastimely filed. The Commission has previously heldthat “[m]otions to reopen received within 30 days of an operator’s receipt ofits first notice from MSHA that it has failed to timely file a notice ofcontest will be presumptively considered as having been filed within areasonable amount of time.” *Highland Mining Co.,*31 FMSHRC 1313, 1316-17(Nov. 2009).  Here, the motion to reopen was filed on February 16, 2023,within 30 days of the final order of February 6, 2023. Therefore, the motion toreopen was filed within a reasonable amount of time.

 

            Havingreviewed Greenbrier’s request and theSecretary’s response, we find that Greenbrier has demonstrated goodcause for its failure to timely respond and acted in good faith by timelyfiling its request to reopen. 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:

LornaM. Waddell

F.Thomas Rubenstein

Dinsmore& Shohl LLP

215Don Knotts Blvd., Suite 310

Morgantown,WV 26501 

Lorna.waddell@dinsmore.com

 

TomCanterbury

Managerof Safety

POBox 446

Man,WV 25635 

Tom.canterbury@coronadous.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

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[1] The operatorstates that it is in the process of paying the full amount of the proposedassessment but maintains that any payment of these citations is made merely toavoid any potential delinquencies and does not waive its right to contest thesefive citations. Motion to Reopen, at 1 n.1. Commissioner Baker has previouslystated that it is his position that the accidental payment of a civil penaltydoes not constitute excusable neglect. *See e.g. Omya, Inc.*, 45 FMSHRC131 (Mar. 2023). However, in light of the operator’s explanation for itspayment of the civil penalty, Commissioner Baker would determine that in theinstant case payment was not the result of an inadequate or unreliable internalprocessing system.