FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 21, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, 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. (2006) (“Mine Act”). On September 19, 2012, the Commission received a motion seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the Commission. The motion was filed by counsel for Joe Estis and Chemical Lime Company of Alabama, LLC (“Chemical Lime”).

            Under the Commission’s Procedural Rules, an individual charged under section 110(c) has 30 days following receipt of the proposed penalty assessment within which to notify the Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.

            We have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders. 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).

            Counsel asserts that Mr. Estis left his employment with Chemical Lime on or about September 11, 2009. Counsel further states that MSHA mailed the proposed assessment, dated October 25, 2011, to an address where Mr. Estis no longer resided. As a result, Mr. Estis apparently did not contest the proposed penalty in a timely manner.

            Administrative Law Judge Jeffrey Tureck issued a Decision Approving Settlement of Docket No. SE 2010-249-M on May 17, 2012. Judge Tureck also ordered that “all existing or potential investigations under Section 110(c) related to Docket No. SE 2010-249-M be dismissed.” The purpose of the motion to reopen is to confirm that the penalty proceeding involving Mr. Estis was specifically dismissed. The Secretary does not oppose the request to reopen and confirms that the settlement agreement contemplated dismissal of the section 110(c) proceeding against Mr. Estis.

            Having reviewed this request and the Secretary’s response, we find that reopening this matter is unnecessary as the judge specifically and properly dismissed this section 110(c) proceeding against Mr. Estis. Accordingly, the request to reopen is dismissed as moot.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Steven Baker, Regional Safety Manager

Lhoist North America

2885 Highway 31

Calera, AL 35040

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

Administrative Law Judge Jeffrey Tureck

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004