**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON,D.C. 20004‐1710**

 

 

SECRETARY OF LABOR,                             :

  MINE SAFETY AND HEALTH                  :

  ADMINISTRATION (MSHA)                     :         Docket No.  WEVA 2022-0467

                                                                         :         A.C. No. 46-06448-552209

                                                                         :

                        v.                                              :         Docket No.  WEVA 2022-0468

                                                                         :         A.C. No. 46-06618-552210

                                                                         : 

                                                                         :         Docket No.  WEVA 2022-0469

ROCKWELL MINING, LLC                          :         A.C.No. 46-09377-552216

 

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

 

ORDER

 

BY THE COMMISSION:

Thesematters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“MineAct”).[1]On July 18, 2022, the Commission received from Rockwell Mining, LLC motionsseeking to reopen penalty assessments that had become final orders of theCommission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).  Undersection 105(a), 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).

 

However,the Commission has also made 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). In examining the operator's asserted justificationsfor reopening a particular case, the Commission has also explored whether theoperator has demonstrated a pattern of behaviors that are attributable toinadequate or unreliable internal processing systems in other cases. *See OakGrove Res., LLC*, 33 FMSHRC 2378, 2379-80 (Oct. 2011).

 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicates that the proposed assessments were delivered to the operator on April8, 2022. The assessments became final orders of the Commission on May 9, 2022,and MSHA issued delinquency notices on June 23, 2022. 

 

Rockwell states that it is unclear exactly when it received theproposed assessments, but notes that near the deadline to file the notices ofcontest, its Corporate Safety Director, who usually files notices of contest,left the company on April 22, 2022. It contends that the outgoing Director didnot file the required notices of contest, nor did he notify any other employeeof the impending deadline. When a paralegal for Rockwell learned of theoversight, the operator quickly retained counsel to file the required contests.The Secretary does not oppose the requests to reopen but urges the operator totake steps to ensure that future penalty contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. §100.7 and the Commission’s procedural rules.

 

Havingreviewed Rockwell’s requests and the Secretary’s responses, we find that due tomistake, inadvertence, or excusable neglect the penalty assessments were nottimely contested. *See Noranda Alumina, LLC*, 39 FMSHRC 441, 445 (Mar.2017) (when the safety director left the company unexpectedly, the failure totimely contest constituted an inadvertent mistake). Moreover, we note thatRockwell promptly filed its motions to reopen promptly upon notification thatthe penalties were delinquent. 

 

Nonetheless,the Commission stresses that its decision that reopening was justified in thisinstance was a close call. In the last five years, Rockwell has requestedreopening several times, citing a variety of justifications for their failureto timely contest penalties. *See e.g. Rockwell Mining, LLC*, 40 FMSHRC1161 (Aug. 2018) (Rockwell alleged it mistakenly believed it had alreadyresponded to the penalty petition); *Rockwell Mining, LLC*, 40 FMSHRC 1155(Aug. 2018) (Rockwell alleged that the penalty petition was sent to the wrongaddress); *Rockwell Mining, LLC*, 42 FMSHRC 796 (Oct. 2020) (Rockwell allegedthat it failed to timely contest the assessments because the assessments weredelivered while its safety manager was on vacation and was warned by theCommission that similar excuses would not be accepted in the future); and *RockwellMining, LLC*, 45 FMSHRC___, 2023 WL 2070349 (Feb. 10, 2023) (Rockwell allegedthat a new office manager receptionist did not provide the proposed assessmentsto the safety director in a timely manner). 

 

Ineach of those previous cases and in this instant matter, the Commission hasfound that Rockwell has demonstrated good cause for its failure to timely fileto contest the proposed assessments. Nonetheless, we recognize that,cumulatively, these motions may indicate an inadequate or unreliable internalprocessing system. Rockwell must ensure that, in the future, it timely files tocontest proposed assessments. The Commission will closely scrutinize any futuremotions to reopen filed by Rockwell for signs of an inadequate processingsystem. Any future request to reopen, which demonstrate that failure to timelyfile was due to an inadequate processing system and that fails to describe goodfaith measures to improve that system, will be denied.

 

Inthe interest of justice, we hereby reopen these matters and remand them 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 petitions 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:

 

Jonathan R. Ellis, Esq.

Colton C. Parsons, Esq.

Steptoe & Johnson PLLC

707 Virginia Street East,Chase Tower, 17th Floor

Charleston, WV 25301

jonathan.ellis@steptoe-johnson.com

colton.parsons@steptoe-johnson.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

----

[1] Rockwell filed similar motions to reopen relying uponthe same reason as a basis for re-opening in three separate dockets. For thelimited purpose of addressing the motions to reopen, we hereby consolidatedocket numbers WEVA 2022-0467, WEVA 2022-0468, and WEVA 2022-0469, whichinvolve similar procedural issues. *See* 29 C.F.R. § 2700.12.