Secretary of Labor v. Pocahontas Coal Company, LLC

Plain-English summary

Pocahontas Coal said an administrative error delayed delivery of a proposed assessment to outside counsel. It did not identify the error, the people involved, or when its safety manager learned that the contest deadline had been missed. The company also filed more than two months after MSHA mailed a delinquency notice and gave no explanation for that delay. The Commission found that the general claim and unexplained timing did not establish grounds for relief. It denied the motion to reopen.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: An operator must explain both the specific processing failure and any delay after notice of delinquency.

Full text (FMSHRC public release)

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.

POCAHONTAS
COAL COMPANY, LLC

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Docket
No. WEVA 2023-0351

A.C.
No. 46-08878-568995

BEFORE:
Jordan,
Chair; Althen, Rajkovich, Baker, and Marvit, 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 June 2, 2023, the Commission received from Pocahontas
Coal Company (“Pocahontas”) 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 January 11, 2023, and
became a final order of the Commission on February 10, 2023. Pocahontas asserts
that the proposed penalty was not timely contested because an “administrative
error” delayed outside counsel’s receipt of the assessment. The Secretary
opposes the request to reopen and notes that a delinquency notice was mailed to
the operator on March 28, 2023.

A party seeking to reopen a final penalty
bears the burden of showing that it is entitled to such relief, through a
detailed explanation of its failure to timely respond. Revelation Energy,
LLC , 40 FMSHRC 375, 375-76 (Mar. 2018) . General
assertions or conclusory statements are insufficient. Southwest Rock Prod., Inc. , 45 FMSHRC 747, 748 (Aug. 30, 2023); B & W
Res., Inc ., 32 FMSHRC 1627, 1628 (Nov. 2010). At a minimum, the applicant
must provide all known details, including relevant dates and persons involved,
and a clear explanation that accounts, to the best of the operator’s knowledge,
for the failure to submit a timely response. Higgins
Stone Co. , 32 FMSHRC 33, 34 (Jan.
2010). Here, Pocahontas merely states that counsel did not timely receive the
proposed assessment due to “administrative error,” without further detail. We
find this explanation insufficient to meet the operator’s burden of showing
that it is entitled to relief.

Pocahontas has also failed
to explain the apparent delay in filing its motion to reopen. The Commission
has 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). Conversely, however, motions to reopen filed more than 30
days after such notice “should include an explanation for why the operator
waited so long to file for reopening,” and “[t]he lack of such an explanation
is grounds for the Commission to deny the motion.” Id. Here, Pocahontas
filed its motion more than three months after the assessment became final, and
more than two months after the Secretary’s delinquency notice. Pocahontas
offers no explanation for the delay. [1]

        Having

reviewed Pocahontas’s request and the Secretary’s response, we find that the
operator has not provided sufficient explanation to justify reopening the
captioned proceeding.

Accordingly,
we deny Pocahontas’s motion.

/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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Justin
K. Chandler, Esq.

Steptoe
& Johnson PLLC

707
Virginia Street East, 17 th Floor

PO
Box 1588

Charleston,
WV 25326-1588

[email protected]

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

[email protected]

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

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

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

[email protected]

[1] Pocahontas’s motion notes that counsel was retained for
purposes of filing a motion to reopen once the Safety Manager became aware the
assessment had not been timely contested. However, the motion does not state when
he became aware of the failure to timely contest. Whether Pocahontas learned of
the issue upon receiving the delinquency notice but did not immediately file a
motion to reopen or did not learn of the issue until well after receipt of the
delinquency notice, an explanation is warranted. Without such detail, the Commission
is unable to determine whether the motion was filed within a presumptively reasonable
amount of time or whether any delay was reasonable.