FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 2, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY: Duffy, Young, and Nakamura, Commissioners

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On October 3, 2011, the Commission received from Limestone Dust Corporation (“Limestone”) a motion submitted by counsel 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).

            The record indicates that the proposed assessment was delivered on December 7, 2010, and became a final order of the Commission on January 6, 2011. MSHA sent a delinquency notice on March 29, 2011, and referred the case to the U.S. Department of Treasury for collection on June 16, 2011. Limestone asserts that it requested, and engaged in, a “Special Pre-Citation Determination Conference” with MSHA. In an affidavit, Limestone’s president states that he was unfamiliar with the contest process since Limestone had historically paid the fines as issued. Moreover, Limestone thought this conference was a new procedure which served as notice of its intent to contest. Limestone contacted counsel regarding this delinquency after receiving a letter from a collection agency on August 3, 2011.

            The Secretary opposes the request to reopen and notes that Limestone had been receiving proposed assessments from MSHA for over 30 years, and has timely contested other proposed assessments before and after this assessment was received. The Secretary also states that MSHA records do not show that a conference was requested, and notes that Limestone did not provide the date on which this conference occurred. Moreover, the Secretary notes that requesting a conference does not alter the contest procedure. In addition, the Secretary states that Limestone did not explain its delay in requesting reopening.

            In response to the Secretary’s opposition, Limestone asserts that it had retained counsel for the other timely contested proposed assessments, since it was unfamiliar with the process. Moreover, Limestone submits a copy of the notice it received from MSHA’s Southern District regarding a “Pilot Program For Health And Safety Conferences.” The notice identified Joseph Bosley, the field office supervisor, as the primary conferencing official. Limestone asserts that it had a telephone call with Mr. Bosley around November 2010, after which Mr. Bosley notified Limestone that MSHA was unwilling to modify the citations. Limestone states that it had mistakenly believed that this conference call constituted a contest, due to the “Pilot Program” title of the notice. Limestone further asserts that it only asked its counsel to review this case in September 2011, after receiving the August 3, 2011, collection notice. Accordingly, Limestone states that its counsel filed the request to reopen less than one month after understanding it had become delinquent.

            Having reviewed Limestone’s request and the Secretary’s response, in the interests 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/ Michael F. Duffy

                                                                                     Michael F. Duffy, Commissioner

                                                                                    /s/ Michael G. Young

Michael G. Young, Commissioner

                                                                                     /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Chairman Jordan and Commissioner Cohen, dissenting:

            Our colleagues grant relief in this case primarily because Limestone asserts that it mistakenly believed that its participation in a conference with MSHA field office staff constituted a contest of the assessed penalties. However, we would deny relief.

            Limestone’s claim that it believed that its conference with MSHA about pending citations served as its contest of the penalty assessment is not credible. Limestone requested a conference on October 14, 2010. The MSHA notice regarding the conference on which Limestone relied states that the “penalty assessment will be stayed waiting the outcome of the conference.” This notice plainly informed Limestone that after the conference, a penalty assessment would be issued unless the conference resulted in a different outcome. Limestone’s Response to the Secretary’s Opposition states that following the conference, the MSHA representative notified Limestone that the citations would not be modified. Response at 2. Then, consistent with the notice, on November 30, 2010, MSHA issued a proposed assessment after the conference resulted in no change to the citations. Limestone failed to respond to this assessment.

            On March 29, 2011, MSHA sent a delinquency notice to Limestone. Again, the operator failed to take any action to rectify the situation. Though Limestone retained counsel in April, 2011, to handle other MSHA litigation, it apparently did not make counsel aware of this case. Finally, over a month after it received an August 3, 2011 collection notice from the Treasury Department, it notified its counsel of its failure to contest the proposed penalty assessment. A continuing belief that attending a conference with MSHA in November 2010 served to contest the penalty ceased to be reasonable in light of MSHA’s subsequent notifications. 

            Moreover, Limestone unduly delayed in filing its motion to reopen with the Commission. In considering whether an operator has unreasonably delayed in filing a motion to reopen a final Commission order, we find relevant the amount of time that has passed between an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., Inc., 31 FMSHRC 8, 10-11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of notice of delinquency must explain the reasons why the operator waited to file a reopening request, and lack of explanation is grounds for the Commission to deny the motion).

Here, the fact that Limestone failed to respond to the delinquency notice and waited approximately six months after its receipt to request reopening and two months after receipt of the collection notice to request reopening, without providing a credible explanation, supports our conclusion that the operator has not met its burden of establishing entitlement to extraordinary relief.

            Consequently, having reviewed Limestone’s request, we conclude that it has failed to establish good cause for reopening the proposed penalty assessment and would deny its motion.

                                                                         /s/ Mary Lu Jordan

                                                                        Mary Lu Jordan, Chairman

                                                                         /s/ Robert F. Cohen, Jr.

                                                  Robert F. Cohen, Jr., Commissioner

Distribution:

Tina Stanczewski, Esq.

Law Office of Adele Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021