FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

November 5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

           v.

COLORADO COUNTY SAND &

GRAVEL, LLC

 

           Docket No. CENT 2013-3-M

           A.C. No. 41-04375-300222-01

                                                                             

 

 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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) (AMine Act@). On May 21, 2013, the Commission received from Colorado County Sand & Gravel, LLC (AColorado County@) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

 

On January 30, 2013, the Chief Administrative Law Judge issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Colorado County=s failure to answer the Secretary=s October 11, 2012 Petition for Assessment of Civil Penalty. The Commission did not receive Colorado County=s answer within 30 days, so the default order became effective on March 4, 2013.

 

Colorado County asserts that it contested six citations in A.C. No. 000300222 and believed they were all included in Docket No. CENT 2013‑4‑M. Colorado County further states that it did not receive the Petition for Assessment of Civil Penalty or the Order to Show Cause. It did not discover that Citation No. 8679247 was not included in Docket No. CENT 2013‑4‑M until it received a motion to approve settlement agreement. The Secretary does not oppose the request to reopen.  

 

The judge=s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. ' 2700.69(b). Under the Mine Act and the Commission=s procedural rules, relief from a judge=s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. ' 823(d)(2)(A)(i); 29 C.F.R. ' 2700.70(a). If the Commission does not direct review within 40 days of a decision=s issuance, it becomes a final decision of the Commission. 30 U.S.C. ' 823(d)(1). Consequently, the judge=s order here has become a final decision of the Commission.

 

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) (Athe Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure@); Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993). 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).

 

Having reviewed Colorado County=s request and the Secretary=s response, in the interest of justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is remanded 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.

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

 

 

 

/s/Michael G. Young

Michael G. Young, Commissioner

 

 

 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

 

 

 

                                                                                    /s/ Patrick K. Nakamura.               

Patrick K. Nakamura, Commissioner

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

 

 

Distribution:

 

Jennifer Pavlas

Accounts Payable Manager

Colorado County Sand & Gravel, LLC

P.O. Box 866

El Campo, TX 77437

 

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., 25th Floor

Arlington, VA 22209-3939

 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710