**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 

 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

            

**ORDER**

 

BY: Jordan, Chair;Rajkovich and Baker, Commissioners

                                                                                                                 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On June 23, 2023, the Commission received fromUnited Taconite, LLC (“United”), a motion seekingto reopen a penalty assessment that had become a final order of the Commissionpursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of theCommission. 30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontestedassessments that have become final Commission orders under section 105(a). *JimWalter Res., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure, under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See* 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe 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 andthat, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may bereopened and appropriate proceedings on the merits permitted. *See Coal Prep.Servs., Inc.,* 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to the operator on January 24,2023. On February 23, 2023, the assessment became a final order of the Commission.

 

            UnitedTaconite argues that staffing changes caused its failure to timely file acontest of twenty civil penalties listed on the proposed assessment. Itexplains that its Senior Safety Specialist, who makes the decisions about whichcitations and penalties to contest, was working in another department at thetime of the issuance of the proposed assessment. In addition, the operator’ssafety manager, who managed the proposed assessment forms, was permanentlytransferred to another department on February 16, 2023, and a new health andsafety specialist was hired on January 20, 2023. United Taconite states thatwhen its safety manager departed on February 16, he handed mail, which includedthe proposed assessment, to the new safety specialist without providing anyinstructions. No action was taken on the proposed assessment. After the SeniorSafety Specialist returned to the safety department, he received a delinquencynotice and contacted outside counsel.[1]On April 24, 2023, he trained the newly hired safety specialist on proceduresfor handling MSHA assessments. United Taconite explains that any further delayafter receiving the delinquency notice was the result of counsel’sinvestigation, preparation of the motion to reopen, and counsel’s litigationschedule. Mot. at 6.

 

            TheSecretary opposes the operator’s motion to reopen. The Secretary states that onMarch 15, 2023, MSHA received partial payment for three citations. On April 10,2023, MSHA sent United Taconite a delinquency notice. On May 1, 2023, MSHAreceived another partial payment for 9 of the 59 citations. On June 2, 2023,MSHA issued United Taconite a demand letter stating that the operator must paya total of $70,737 within 30 days or MSHA would take additional enforcementaction. On July 14, 2023, MSHA issued a citation alleging that United Taconitehad violated the Mine Act through its failure to pay. 

 

            Inopposing United Taconite’s motion, the Secretary argues that the operator’sexplanation that no action had been taken on the proposed assessment becausethere were personnel changes and that the newly hired safety specialist did notknow the payment or contest process “boils down to inadequate procedures forresponding to proposed penalties.” Sec’y Response at 7. The Secretary assertsthat the operator should have been more careful with the filing of the contestsin this case given the large penalties proposed. She submits that although thenew safety specialist was later trained, it did not address the inadequateprocedures in this case. The Secretary contends that United Taconite filed itsmotion to reopen over 2 months after MSHA sent it a delinquency letter.

 

The Commission has made it clear thatwhere a failure to contest a proposed assessment results from an inadequate orunreliable internal processing system, the operator has not established groundsfor reopening the assessment. *Shelter Creek Capital, LLC*, 34 FMSHRC3053, 3054 (Dec. 2012); *Oak Grove Res.*, *LLC*, 33 FMSHRC 103, 104(Feb. 2011); *Double Bonus Coal Co*., 32 FMSHRC 1155, 1156 (Sept. 2010); *HighlandMining Co*., 31 FMSHRC 1313, 1315 (Nov. 2009); *Pinnacle Mining Co*.,30 FMSHRC 1066, 1067 (Dec. 2008); *Pinnacle Mining Co.*, 30 FMSHRC 1061,1062 (Dec. 2008). United Taconite did not provide the employee with training onproposed assessments, or otherwise remedy the confusion resulting from thestaffing changes, for over two months. This amounts to an inadequate orunreliable internal processing system. 

 

In addition, United Taconite failed tofile the motion to reopen within a reasonable time. TheCommission has previously held that “[m]otions to reopen received within 30days of an operator’s receipt of its first notice from MSHA that it has failedto timely file a notice of contest will be presumptively considered as havingbeen filed within a reasonable amount of time.” *Highland Mining Co.,*31FMSHRC 1313, 1316-17 (Nov. 2009). The operator’s June 23 motion to reopen wasfiled months after it received the April 11 delinquency letter and weeks afterMSHA sent the operator a demand letter.

 

We find that United Taconite has not assertedgood cause for its failure to timely contest the proposed penalties. *See MooseLake Aggregates, LLC*, 34 FMSHRC 1, 2-3 (Jan. 2012) (denying a motion toreopen when the operator had deficient internal procedures and failed to filemotion within a reasonable time). The motion is denied with prejudice.   

 

 

 

/s/Mary Lu Jordan

Mary Lu Jordan,Chair

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

CommissionerAlthen, dissenting:

 

I respectfullydissent.

 

This motion toreopen involves an attempt by United Taconite to challenge 20 citationstotaling nearly $70,000 in proposed penalties. 

 

The facts are notcontested. A United Taconite Safety Specialist oversaw dealing withassessments. When he temporarily left his department in June 2022, a safetymanager took over processing citations. However, that safety manager left thatposition virtually simultaneously with the receipt of the subject assessments. Anew person replaced him but did not know the contents of the envelopes leftbehind. 

 

In March, theSafety Specialist who had been on temporary reassignment returned and went overoutstanding issues with the new Safety Specialist who had been unaware of thecitations. At that point, the assessments were discovered. 

 

When the Senior SafetySpecialist found the notice of delinquency, he immediately returned the penaltyassessment noting 20 challenged citations demonstrating its desire to contestthose citations. United Taconite also responsibly turned the filing of a formalmotion over to outside counsel. A paralegal for outside counsel affirmed viaaffidavit that United Taconite contacted her on April 21, 2023, regarding thedelinquency notice that had been mailed by the Secretary on April 10, 2023. Writingwith great integrity, the law firm acknowledges in the motion it filed that:

 

Any further delaybeyond the initial discovery of the delinquent Assessment [mid-April] uponreceipt of the delinquency notice make April 3, was the result of counsel forUnited Taconite’s investigation of this matter, preparation of the Motion toReopen and related documents, and counsel’s additional litigation schedule.

 

Mot. to Reopen at 6 (June 8, 2023).

 

United Taconiteproved that it recognized its error and acted to correct it virtuallyimmediately upon receiving first notice of delinquency.  Within the last fewdays, the Commission reaffirmed a long-established position regarding timelyrecognition of an error. 

 

The Commission hasheld that quick action after recognizing an error militates in favor ofreopening. “Motions to reopen received within 30 days of an operator’s of itsfirst notice from MSHA that it has failed to timely file a notice of contestwill be presumptively considered as having been filed within a reasonableamount of time.” *Highland Mining Co*., 31 FMSHRC 1313, 1316-17 (Nov.2009).

* *

*Heidelberg Materials, US Cement, LLC v. Sec’y*, 45FMSHRC ___ (Dec. 6, 2023).

 

            Undoubtedly, United Taconite’s immediate action uponreceipt of receiving notice of the error compels a finding of good faith. Ifthe operator had typed a note asking to reopen with the submission, itunquestionably would be presumptively considered to have filed its motionwithin a reasonable time. Ignoring the operator’s quick action, the majorityuses a technicality that United Taconite did not file a “motion” to reopen butinstead, acting reasonably, turned to its outside counsel. 

 

The majority finds a reason tofind a default of 20 citations comprising a very large penalty amount becauseUnited Taconite turned to its attorneys and the attorneys took two months tofile the formal motion.  The Secretary does not assert any prejudice because ofthe delay in filing a formal motion challenging the citations that the operatorquickly contested upon receiving a notice of delinquency. *Cf. Long BranchEnergy*, 34 FMSHRC 1984, 1991 (showing leniency to the Solicitor for failingto file timely during a period of increased litigation when actual prejudicecould not be shown). Under these circumstances, United Taconite provided timelynotice of its desire to challenge and an explanation of reasons for its failureto file within 30 days of receipt of the citations. 

 

Apparentlyrecognizing that United Taconite acted with promptness to notify MSHA and theCommission of its desire to contest citations, the majority also finds thatUnited Taconite had an unreliable internal processing system. That allegationis false.  

 

These facts do notshow an unreliable system. They show a sui generis situation in which turnoverof staff simultaneously with the temporary absence of a Safety Specialist ledto a brief delay in recognizing and dealing with the assessments. With the SafetySpecialist’s return and within 30 days of first notice, United Taconite servednotice of its desire to contest the 20 citations. In short, a reliable internalsystem was temporarily disrupted by the simultaneous absence of the priorsafety manager and the temporarily reassigned Safety Specialist. 

 

This case does notreflect poor internal processing or lack of expedition by United Taconite. Itis a singular event caused by staff turnover. Yet, the majority reviews UnitedTaconite’s quick action and finds no difficulty in refusing it the opportunityto contest penalties totaling a very high amount.

 

The majority’sopening paragraph purports to recognize that default is a harsh remedy. Institutions areknown for the actions they take not the high-sounding words they write. The majority’sdecision belies their words. 

 

 

/s/ William I. Althen

William I. Althen, Commissioner 

 

 

Distribution:

 

PatrickW. Dennison, Esq.

Fisher& Phillips LLP

6PPG Place

Suite830

Pittsburgh,PA 15222

pdennison@fisherphillips.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov

 

 

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[1] We note that ourdissenting colleague states that when the Senior Safety Specialist received thenotice of delinquency, he immediately returned the penalty assessment noting 20citations the operator wished to contest. Slip op. at 4. Although the proposedpenalty assessment form is signed and dated April 20, 2023, there are noallegations in the record that the operator returned the contest form to MSHAon or near that date. Rather, the contest form appears in the record as anattachment to the operator’s June 23 motion to reopen. *See, e.g.,* Ex. C001 (affidavit of senior safety specialist stating that once he became aware ofthe delinquency notice, he contacted the outside counsel’s paralegal whoinformed him that it would be necessary to file a motion to reopen).