January 19, 2021

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

LUDWIG EXPLOSIVES, INC.

Docket No. LAKE 2020-0033

A.C. No. 11-01657-500192

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. (2012) (“Mine Act”). On November 20, 2019, the Commission received from Ludwig Explosives, Inc. (“Ludwig”) 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 September 30, 2019, and became a final order of the Commission on October 30, 2019. Ludwig asserts that it had a lay person (a risk management consultant) handle the contest and that the consultant had filed it within thirty business days. The Secretary found it was late because it was not filed within thirty calendar days. The consultant further explains with detail how he has been experiencing a family medical emergency, which contributed to his confusion about the computation of the deadline. In addition, he cites to a confirmation of receipt from the Chief Administrative Law Judge regarding the operator’s notice of contest of the citation, with an order of assignment to an ALJ (LAKE 2020-0021-RM), as a contributing factor to his confusion. 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 Ludwig’s request and the Secretary’s response, we find that the operator acted with excusable neglect due to the confusion from the separate docket and his family medical emergency. 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 (e-mail):

Daniel P. Foltyniewicz,

Ludwig Explosives, Inc.

P.O. Box 5312

Wheaton, IL 60189

Dpf49@aol.com

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12^th Street South, Suite 401

Arlington, VA 22202-5452

McCracken.John.M@dol.gov

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12^th Street South, Suite 401

Arlington, VA 22202-5452

Nelson.April@dol.gov

Chief Administrative Law Judge Glenn Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12^th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@dol.gov