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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DELHUR INDUSTRIES, INC.

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Docket No. CENT 2020-0099-M

A.C. No. 45-03093-504693

 

 

 

 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 March 16, 2020, the Commission received from DelHur Industries, Inc. (“DelHur”) 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 December 11, 2019, and became a final order of the Commission on January 10, 2020. DelHur contends that it never received the proposed penalty assessment and was not aware of the assessment until it received MSHA’s delinquency notice, which was sent on February 25, 2020. Upon receipt of MSHA’s delinquency notice, DelHur contacted MSHA, which directed the operator to contact the Commission. DelHur then filed this motion to reopen the final penalty assessment. 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 DelHur’s request and the Secretary’s response, we find that DelHur failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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/ Marco M. Rajkovich, Jr.

                                                                                    Marco M. Rajkovich, Jr., Chairman

 

 

 

/s/ William I. Althen

                                                                                    William I. Althen, Commissioner

 

 

 

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

 

 

Distribution:

 

Eddee Smay

DelHur Industries, Inc.

esmay@delhur.com

 

Emily Scott, Esq.

Office of the Solicitor

Scott.Emily.T@dol.gov

 

Chief Administrative Law Judge Glynn Voisin

Federal Mine Safety & Health Review Commission

GVoisin@fmshrc.gov

 

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

Garris.Melanie@DOL.GOV