**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 THE COMMISSION:

                                                                                                                 

            Thesematters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On November 22, 2023, the Commission receivedfrom Leesville Land LLC (“Leesville”) a motion seeking to reopen ten penaltyassessments that had become final orders of the Commission pursuant to section105(a) of the Mine Act, 30 U.S.C. 

§815(a).[1]

 

            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).

 

Records of the Department of Labor’s MineSafety and Health Administration (“MSHA”) indicate that the proposed assessmentin Docket No. LAKE 2024-0051 was delivered to the operator on August 16, 2022,and became a final order of the Commission on September 15, 2022. The proposedassessment in Docket No. LAKE 2024-0052 was delivered to the operator onFebruary 7, 2023, and became a final order of the Commission on March 9, 2023. Theproposed assessment in Docket No. LAKE 2024-0053 was delivered to the operatoron February 15, 2023, and became a final order of the Commission on March 17,2023. The proposed assessment in Docket No. LAKE 2024-0054 was delivered to theoperator on February 28, 2023, and became a final order of the Commission onMarch 30, 2023. The proposed assessment in Docket No. LAKE 2024-0055 wasdelivered to the operator on March 15, 2023, and became a final order of theCommission on April 14, 2023. The proposed assessment in Docket No. LAKE2024-0056 was delivered to the operator on April 10, 2023, and became a finalorder of the Commission on May 10, 2023. The proposed assessment in Docket No.LAKE 2024-0057 was delivered to the operator on May 18, 2023, and became afinal order of the Commission on June 19, 2023. The proposed assessment inDocket No. LAKE 2024-0058 was delivered to the operator on July 11, 2023, andbecame a final order of the Commission on August 10, 2023. The proposedassessment in Docket No. LAKE 2024-0059 was delivered to the operator on August18, 2023, and became a final order of the Commission on September 18, 2023. TheSecretary’s records do not specify the final order date for Docket No. LAKE2024-0060. However, the statement date for the proposed assessment in this casewas September 13, 2023.

 

            Leesvilleasserts that its former Safety Director had limited experience with contestingcitations, failed to understand the assessment process, and did not timely contestassessments. Mine management received a notice from MSHA that the mine’s enforcementhistory “was trending in the wrong direction and could lead to a Pattern ofViolations consideration.” Operator’s Affidavit at 3. On November 1, 2023, Leesvillehired a new experienced safety director to handle proposed assessments and minesafety and health-related duties. Upon assuming the position, the new safetydirector discovered numerous failures by his predecessor and promptly tooksteps to file motions to reopen and implement new procedures for ensuringproposed assessments are timely evaluated and contested. The operator claims tobe resolving outstanding delinquencies and working with MSHA to improve minesafety and health conditions. They claim the new Safety Director has madesignificant improvements and seeks reopening to contest a discrete number of citations.Inview of Leesville’s changes and willingness to work with MSHA, the Secretarydoes not oppose the motion to reopen.

 

In Docket No. LAKE 2024-0051, the motionto reopen was filed more than one year after becoming a final order. UnderFederal Rule of Procedure 60(c), motions to reopen alleging mistake,inadvertence or excusable neglect must be made no more than a year after entryof the final order. *J S Sand & Gravel, Inc.*, 26 FMSHRC 795, 796(Oct. 2004). Therefore, Leeville’s motion as to this case is untimely and isdenied with prejudice. 

 

            Inthe remaining cases, having reviewedLeesville’srequest and the Secretary’s response, wefind that the failure to contest was the result of a single employee failing tounderstand the contest procedures. Leesville’s prompt action upon discoveringthe issue and willingness to hire additional support to work with MSHAconstitute a basis for reopening. *Vulcan Electrical Servs.*, 45 FMSHRC 597,98 (July 11, 2023) (reopening when an employee did not understand thesignificance of the timing for filing a contest and the operator took promptaction to correct the issue). 

 

 

In the interest of justice, we hereby reopen thesematters and remand it to the Chief Administrative Law Judge for furtherproceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretaryshall file a petition for assessment of penalty within 45 days of the date ofthis 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:

 

ChristopherD. Pence, Esq.

PenceLaw Firm, PLLC

10Hale Street, 4th Floor

Charleston,WV 25301

cpence@pencefirm.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

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

----

[1] For the limitedpurpose of addressing these motions to reopen, we hereby consolidate thesematters because they involve similar factual and procedural issues. 29 C.F.R. §2700.12.