**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: Jordan, Chair;Althen and Rajkovich, Commissioners 

                                                                                                                 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On June 5, 2023, the Commission received from ITAC,a motion seeking to reopen a penalty assessment that had become a final orderof the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §815(a).

 

            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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to 13203 N. Enon ChurchRoad on April 3, 2023, and became a final order of the Commission on May 3,2023. On June 20, 2023, MSHA sent ITAC a delinquency notice. ITAC explains thatthe proposed assessment was mailed to its former address, which has since been occupiedby Rivers Bend East Office Group & Technology Center I, LLC (“Rivers Bend”).It states that on May 25, 2023, ITAC’s Senior Procurement Agent went to itsformer address to look for missing packages and was provided with a number ofmisplaced mail and packages kept in a locked office, including the assessmentpackage. The operator hand-delivered the assessment package to ITAC’s CorporateOffice Attendant, who delivered the package the next day to the appropriatepersonnel to handle the processing of the assessment. 

 

On the next business day, May 30, ITACcontacted MSHA to notify MSHA of the circumstances involving the assessmentpackage. MSHA informed the operator that because no contest had been received,a final order had been issued. ITAC also was informed that MSHA's address ofrecord for the operator was the 13203 N. Enon Church Road address. ITAC begantaking steps to prevent reoccurrence of this situation by updating its addressof record with MSHA.

 

The Secretary opposes reopening. TheSecretary argues that MSHA mailed the Proposed Penalty Assessment to theoperator’s address of record and that a U.S. Postal Service delivery recordindicates that the “item was delivered to an individual at the address” onApril 3, 2023, and that the item was signed for by ITAC. The Secretary contendsthat the operator’s failure to fulfill its legal responsibility to update itsaddress of record does not constitute excusable neglect warranting reopening.

 

            ITACdoes not dispute that the assessment was mailed to the correct address ofrecord. Corporatecounsel for ITAC contacted Rivers Bend and confirmed that the locked officecontaining ITAC’s unclaimed mail belonged to an employee of Rivers Bend. ITAChas otherwise been unable to determine who signed for delivery of theassessment package.Thus, although USPS indicated that the assessment had been delivered to ITAC’sformer address and “signed by ITAC,” the recipient of delivery is unclear. Inaddition, it appears that ITAC may not have been aware that its former addresswas listed as its address of record with MSHA since ITAC has received only twocitations since 2009, including the citation at issue. Given that this islikely the contractor’s first contest of a citation in fourteen years, ITAC’smistake in failing to update its address was an excusable one.  

 

We note that the motion to reopen wastimely filed once ITAC discovered the error. The Commissionhas previously held that “[m]otions to reopen received within 30 days of anoperator’s receipt of its first notice from MSHA that it has failed to timelyfile a notice of contest will be presumptively considered as having been filedwithin a reasonable amount of time.” *Highland Mining Co.,*31 FMSHRC1313, 1316-17 (Nov. 2009). Here, the motion to reopen was filed on June5, 2023, within 30 days of having received the assessment package on May 25,and before the delinquency notification was received. Therefore, the motion wasfiled within a reasonable amount of time.

            

Having reviewed ITAC’s request and the Secretary’s response, we find that theoperator has demonstrated good cause for its failure to timely respond andacted in good faith by timely filing its request to reopen. In the interest of justice, we hereby reopen thismatter 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. We note, however, that a repeated failure to update one’saddress of record would indicate an inadequate internal process and may resultin future motions to reopen being denied. Accordingly, consistent with Rule 28, theSecretary shall file a petition for assessment of penalty within 45 days of thedate 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

 

 

Commissioner Baker, dissenting:

 

I respectfully dissent. 

 

Section 109(d) of the Mine Actrequires each operator of a coal or other mine to file with the Secretary ofLabor the name and address of such mine, the name and address of the person whocontrols or operates the mine, and any revisions in such names or addresses.30U.S.C. § 819(d). Under the authority granted by the Act, the Secretary haspromulgated regulations requiring an operator to provide MSHA with, among otherthings, its correct address of record. 30 C.F.R. § 41.11. If any changes occurwith respect to this information, an operator is required to notify MSHA of thechange within 30 days of its occurrence. 30 C.F.R. § 41.12. Any failure by anoperator to notify MSHA in writing of a change is considered a violation ofSection 109(d) of the Act and subject to a civil penalty as provided in section110 of the Act. 30 C.F.R. § 41.13. The regulations further provide: 

 

Serviceof documents upon the operator may be proved by a post office return receiptshowing that the documents could not be delivered to such address of recordbecause the operator had moved without leaving a forwarding address or becausedelivery was not accepted at that address, or because no such address existed. 

 

30 C.F.R. § 41.30. 

 

In light of these statutoryand regulatory requirements, the Commission has denied motions to reopen, inpart, because the operator failed to maintain its correct address of record. *See**Southwest Rock Products, Inc.*, 45 FMSHRC ___, No. WEST 2021-0275 (Aug.30, 2023). In addition, the Commission has previously held that where a failureto contest a proposed assessment results from an inadequate or unreliableinternal processing system, the operator has not established grounds forreopening the assessment*. See e.g. Shelter Creek Capital, LLC*, 34 FMSHRC3053, 3054 (Dec. 2012); *Oak Grove Res., LLC*, 33 FMSHRC 103, 104 (Feb.2011); *Double Bonus Coal Co.*, 32 FMSHRC 1155, 1156 (Sept. 2010).

 

In the instant case, it isundisputed that the proposed assessment was delivered to the operator’s addressof record on April 3, 2023, and became a final order of the Commission on May3, 2023. ITAC’s excuse for its failure to respond to the proposed assessment ina timely manner is that it changed offices in 2009 without notifying MSHA. As aresult, it did not learn about the assessment until May 25, 2023, when itsSenior Procurement Agent went to its former address to look for missingpackages. It was not until May 30, 2023, 14 years after the deadline, that ITACcontacted MSHA, and performed its legal obligation to update its address ofrecord. 

 

The operator’s failure toupdate its address of record does not constitute excusable neglect. In fact,the explanation is itself an independent violation of the Mine Act that couldhave been cited. Rather than excuse the operator’s failure to timely contestthe citation, it compounds the error. Further, the operator’s processing systemamounted to allowing mail to pile up at the wrong address for months at a time.Obviously, that is inadequate and unreliable and does not justify theoperator’s failure here. I note that the Secretary opposes reopening. 

 

It is significant that theoperator provided no justification for why it took 14 years to update itsofficial address. The majority supplies its own justification for the operator’sdelay, noting, “it appears that ITAC may not have been aware that its formeraddress was listed as its address of record with MSHA since ITAC has receivedonly two citations since 2009, including the citation at issue.” 

 

Leaving aside the fact thatthe operator did not cite this information in support of its motion, I do notbelieve that the long gap between citations issued to the operator is relevant.An operator, under the relevant regulations, is defined as “any owner, lessee,other person who operates, controls, or supervises a coal or other mine or anydesignated independent contractor performing services or construction at suchmine.” 30 C.F.R. § 41.1(a). As a result, the regulations requiring operators toinform MSHA of a change of address (among other things) apply equally to alloperators, including an operator that could be characterized as “infrequent.” Alloperators must conform their behavior to the requirements of the Mine Act, andin the interest of fairness we must consider failure to comply with thoserequirements consistently.

 

Therefore, I would find thatITAC failed to establish good cause and I would deny ITAC’s motion to reopen.

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

 

Distribution:

AllenL. West, Esq.

HamiltonStephens Steele + Martin, PLLC

525N. Tryon Street, Suite 1400 

Charlotte,NC 28202

awest@lawhssm.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

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[1] The operator’smotion to reopen refers to the operator as “Industrial TurnAround Corporation.”However, in its 2000-7 Legal Identity Report, the operator lists its name as“ITAC.” For the purposes of this proceeding, we will use “ITAC,” the operator’sofficial name on file with MSHA.

 

[2] The operator’smotion to reopen incorrectly lists number 31-00212-573989 in the caption, butthe assessment attached to its motion is 31-00212-573986.