FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,   MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA)                         v. PATTISON SAND COMPANY, LLC

: : : : : : :

DocketNo. A.C. No.

CENT 2013-607-M^1 13-02297-323804

BEFORE: Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On July 19, 2013, the Commission received from Pattison Sand Company, LLC (“Pattison”) a motion seeking to reopen Citation No. 8737286 in 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 June 11, 2013, and became a final order of the Commission on July 11, 2013. The proposed assessment included a number of section 104(c) citations as well as Citation No. 8737286, a citation issued under section 104(d)(1) of the Mine Act. Pattison asserts that it intended to contest the section 104(d)(1) Citation No. 8737286, but that its human resources director mistakenly sent the assessment to accounting for payment. The error was discovered on July 16, 2013, after MSHA commenced a section 110(c) investigation. The Secretary does not oppose the request to reopen and urges the operator to take steps to ensure that future penalty contests are timely filed.

            Having reviewed Pattison’s request and the Secretary’s response, in the interest of justice, we hereby reopen this matter as to Citation No. 8737286 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/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

                                                                        Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

                                                                        William I. Althen, Commissioner

---

¹ Pursuant to 29 C.F.R. § 2700.79, the Order dated October 3, 2014, has been amended to correct a clerical error in the captioned Docket No.