**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.

 

WESTMORELAND  ABSALOKA 

 MINING,  LLC                                         | :

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Docket  No. WEST 2023-0221

A.C.  No. 24-00910-572821 |
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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 May 9, 2023, the Commission received from WestmorelandAbsaloka Mining, LLC (“Westmoreland”) 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 March 23, 2023 and became a final order of the Commission on April24, 2023.  MSHA received partial payment of the assessment on April 20, 2023, afew days before the assessment became a final order.  The Secretary does notoppose the request to reopen.

 

Payments for uncontested citations must bemailed to MSHA’s Lock Box in St. Louis, Missouri.  However, contests ofproposed assessments must be mailed to a different MSHA address in Arlington, Virginia. On April 13, 2023, Westmoreland correctly mailed its payment for theuncontested citations to St. Louis.  However, on the same day, Westmorelandmistakenly mailed its contest along with its payment to the St. Louis address. 

 

On April 24, the assessment became a finalorder.  Two days later, Westmoreland was informed by MSHA that its firstcontest was sent to an incorrect address. Therefore, on April 26, Westmorelandsent a second contest, this time via email, to MSHA’s email address.  On April28, MSHA informed the operator that its second contest was untimely filed.

 

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 May 9, 2023, within 30days of the final order of April 24, 2023.  Therefore, the motion to reopen wasfiled within a reasonable amount of time.

 

            Havingreviewed Westmoreland’s request and theSecretary’s response, we find that Westmoreland 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:

RobinIrwin

SafetyManager

WestmorelandAbsaloka Mining, LLC

P.O.Box 449

Hardin,MT 59034 

rirwin@westmoreland.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