**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.

 

ROCKWELL  MINING, LLC                                             | :

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Docket  No. WEVA 2023-0197

A.C.  No. 46-09377-566429

 

Docket  No. WEVA 2023-0198

A.C.  No. 46-09427-566430 |
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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. (2018) (“Mine Act”). On February 22, 2023, the Commission receivedfrom Rockwell Mining, LLC (“Rockwell”) two 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).[1]

 

            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 the proposed assessments were delivered to the operator via U.S.Postal Service on November 16, 2022. On December 16, 2022, the proposedassessments were deemed final orders of the Commission because the operator hadnot filed Notices of Contest within 30 days. On January 31, 2023, MSHA maileddelinquency notices to the operator. 

 

            Rockwellasserts that it learned of the assessments on February 6, 2023, during aninquiry into its penalty balance. At that time, MSHA informed Rockwell that theassessments had been delivered on November 16, 2022 and that the signatureblock on the delivery confirmation read “C COVID.” Rockwell claims no employeereceived the assessments on November 16, 2022. The exact method of delivery confirmationis unclear. The Secretary of Labor does not oppose the request to reopen.

 

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 February 22, 2023,approximately two weeks after the conversation with MSHA and approximatelythree weeks after the delinquency notices were received. Therefore, themotion was filed within a reasonable amount of time.

 

            Havingreviewed Rockwell’s requests and the Secretary’sresponses, we find that the operator has demonstrated good cause for itsfailure to timely respond and acted in good faith by timely filing its requestto reopen.[2]We also note the use of “C COVID” in the signature block, and recognize thatmail delivery was affected by the unprecedented strain of the COVID-19 pandemicduring the relevant timeframe. 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 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:

 

JustinK. Chandler, Esq.

Steptoe& Johnson PLLC

707Virginia Street East, 17th Floor

POBox 1588

Charleston,WV 25326-1588

Justin.chandler@steptoe-johnson.com

 

JonathanR. Ellis, Esq.

Steptoe& Johnson PLLC

707Virginia Street East, 17th Floor

POBox 1588

Charleston,WV 25326-1588

Jonathan.ellis@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

Officeof the Chief Administrative Law Judge

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] For the limitedpurpose of addressing these motions to reopen, we hereby consolidate docketnumbers WEVA 2023-0197 and WEVA 2023-0198 because they involve similar factualand procedural issues. 29 C.F.R. § 2700.12.

 

[2] In a June 29,2023 Order in Docket No. WEVA 2022-0467 et al., Rockwell was put on notice thatany future motions to reopen would be closely scrutinized for signs of aninadequate internal processing system. This motion was filed prior to thatnotice. Furthermore, the record does not indicate whether the mistake in thisinstance was with the U.S. Postal Service’s delivery and confirmation process, Rockwell’sreceipt process, or simply a fluke. Nevertheless, we reiterate that any futurerequests to reopen which indicate a failure of Rockwell’s internal processingsystem and fail to describe good faith measures to improve that system may bedenied.