**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)          

 

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GCC  PERMIAN                                            | :

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Docket  No. CENT 2022-0218

A.C.  No. 41-00060-555004

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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 August 16, 2022, the Commission receivedfrom GCC Permian 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 May 26, 2022, and becamea final order of the Commission on June 27, 2022. GCC Permian asserts that thenotice of contest was timely mailed on June 6, 2022, however the safety managerfailed to verify that the correct address was used, and the paperwork wasaccidentally sent to MSHA’s penalty collections office in St. Louis along withthe payment of the uncontested citations. The Secretary does not oppose therequest to reopen, but urges the operator to take steps to ensure that futurepenalty contests are timely filed.

 

            Havingreviewed GCC Permian’s request and theSecretary’s response, we find that the failure to properly file thenotice of contest was the result of inadvertent administrative error. We urgethe operator to take steps to ensure that such errors do not recur. Nevertheless,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:

MatthewLawson

GCCPermian

P.O.Box 1547 

Odessa,TX 79760

mlawson@gcc.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