**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.

 

MARFORK  COAL COMPANY, LLC,                                        | :

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Docket  No. WEVA 2023-0043

A.C.  No. 46-09550-560358

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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 November 4, 2022, the Commission receivedfrom Marfork Coal Company, LLC (“Marfork”), 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 17, 2022. OnSeptember 16, 2022, the assessment became a final order of the Commission. 

 

Marfork states that it emailed a notice ofcontest to MSHA, on September 26, 2022—after the order had become final—notingits intent to contest seven citations. The Secretary received a check directedtoward the proposed assessment in the amount of $5,224 on October 5, 2022.[1]

 

            Marforkthen filed the subject motion to reopen the seven citations and penalties thatit had tried to contest. Marfork states that an executive assistant at Marfork’sparent company, Alpha Metallurgical Resources, Inc., made a mistake; she neglectedto change the assessment status to “Ready for Review” after logging it into thecompany’s internal processing system. As a result, the safety director did notreview the citations until September 19, 2022, three days after the civilpenalty assessment had become a final order of the Commission. Marfork promisesthat “[i]n the future, [the executive assistant] will more timely move theProposed Assessment from ‘New’ to ‘Ready for Safety Review,’ so that the SafetyDepartment has adequate time to contest the violations well within the 30-dayperiod.” Mot. at 3.   

 

            TheSecretary opposes the operator’s motion to reopen. The Secretary representsthat the operator has not established good cause for its failure to timelycontest the proposed assessment, but instead has identified uncorrectedinadequate internal procedures which in the recent past have contributed to itsfailure to timely contested other proposed assessments. 

 

In fact, several months prior to filingthis motion, Alpha cited to the *exact same* clerical error in a motion toreopen filed by a different subsidiary. On June 27, 2022, Alpha represented tothe Commission that Mammoth Coal Company failed to timely contest a proposedassessment because the same administrative assistant inadvertently neglected tochange the proposed assessment status to “Ready for Safety Review” in theoperator’s internal processing system.[2]In granting Mammoth’s motion to reopen, the Commission relied on “[t]heoperator[’s] promise[ ] that, in the future, the executive assistant willtimely move all proposed assessments to ‘Ready for Review’ status.” *MammothCoal Co*., Docket No. WEVA 2022-0426 (March 13, 2023) at 2.

 

            Inopposing Marfork’s motion, the Secretary argues that “[t]he Commission shouldnot reward operators who represent to the Commission that they have changedtheir procedures, but in fact have not.” Sec’y Response at 6. 

 

The Commission has made it clear thatwhere a failure to contest a proposed assessment results from an inadequate orunreliable internal processing system, the operator has not established groundsfor reopening the assessment. *Shelter Creek Capital, LLC*, 34 FMSHRC3053, 3054 (Dec. 2012); *Oak Grove Res.*, LLC, 33 FMSHRC 103. 104 (Feb.2011); *Double Bonus Coal Co*., 32 FMSHRC 1155, 1156 (Sept. 2010); *HighlandMining 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).

 

Alpha was put on specific notice ofdeficiencies in its internal processing system but failed to take adequateactions to remedy these deficiencies for months, despite promises to correctthe problem. The operator did not reply to the Secretary’s response.  

 

We find that Marfork has not asserted goodcause for its failure to timely contest the proposed penalties. *See LoneMountain Processing, Inc*., 35 FMSHRC 3342, 3345 (Nov. 2013) (denying amotion to reopen when the operator was put on notice of and neglected to fixproblems with its internal procedures). The motion is DENIED WITH PREJUDICE.   

 

 

 

 

/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:

 

JamesP. McHugh, Esq.

HardyPence PLLC

10Hale Street, 4th Floor

PostOffice Box 2548

Charleston,WV 25329

jmchugh@hardypence.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

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[1] Marfork’s paymentof $5,224 equals the total civil penalty amount for the 13 unmarked penaltieson the late filed contest form. Exhibit A. The Secretary applied Marfork’spayment toward the first two citations listed chronologically on the proposedassessment form. *Id*. 

[2] The Secretaryrepresents that according to both motions to reopen the same Alpha personnelare responsible for processing proposed assessments for Marfork and Mammoth.