FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

ST. MARYS CEMENT

Docket No. LAKE 2024-0086

A.C. No. 20-02434-589322

BEFORE: Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY: Chair Jordan and Commissioner Baker

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On January 9, 2024, the Commission received from St. Marys Cement (“St. Marys”) a motion to reopen a final order of the Commission pursuant to section 105(a) of the 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 to the operator on November 20, 2023, and became a final order of the Commission on December 20, 2023.

In its motion to reopen, St. Marys contends that it did not timely contest the civil penalties because the plant manager neglected to forward the proposed assessment to outside counsel. St. Marys cites to turnover in the safety department as contributing to the mistake.

The Secretary opposes the operator’s request. The Secretary contends that the operator’s motion is too vague. Additionally, the Secretary states that the current request considered with the operator’s previous motion to reopen a separate case, demonstrates that the operator has an inadequate or unreliable internal processing system. See St. Marys Cement, 45 FMSHRC 1008 (Dec. 2023).

St. Marys filed a reply to the Secretary’s response. See Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June 2008) (permitting replies to the Secretary’s response in opposition to a motion to reopen). Attached to the response was an affidavit by Ann Straw, St. Marys’ former general counsel, in which she declared that it was establish protocol for the plant manager to email assessments to both the general counsel and outside counsel.[1] In this instance, the plant manager mistakenly did not include outside counsel on the email and Straw did not notice the omission as she was distracted by the death of a family member.

The Secretary filed a surreply, arguing that the operator’s reply inappropriately provides new information and should not be considered by the Commission. The Secretary further argues that even if we consider the new information, St. Marys’ motion should be denied. The Secretary states that “St. Marys chose to implement a process that placed sole responsibility for forwarding proposed assessments on one person, despite knowing that this person was essentially doing two jobs.” Surreply at 7.

The Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103. 104 (Feb. 2011).

After considering the various filings of the parties, we find that the operator has not establish that its failure to timely file was the result of a mistake or other good cause reason, rather we conclude that its failure was the predictable result of an inadequate or unreliable processing system. St. Marys was on notice that its system of processing assessments was not reliable. Recently, in its March 2023 motion to reopen, the operator cited to turnover in its safety department as contributing to a missed filing deadline. St. Marys Cement, 45 FMSHRC 1008 (Dec. 2023). In the subject January 2024 motion, St. Marys once again cites to staffing issues in its safety department. Despite notice of processing problems, the operator failed again to timely contest a civil penalty assessment.

Multiple repeated processing errors of the same nature can reflect an inadequate internal processing system. Lone Mountain, 35 FMSHRC 3342 (Nov. 2013) (emphasizing the repeated misplacement of paperwork by the operator). We have recently held that a repeated instance of the same clerical error does not warrant reopening.[2] Marfork Coal Co., LLC, 45 FMSHRC 463 (June 2023) (denying a motion to reopen because an operator was put on notice of deficiencies in its internal processing system but failed to take adequate actions to remedy these deficiencies).

Accordingly, we deny St. Marys’ motion to reopen.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, concurring:

I write to agree with the Majority in this case for the reasons set forth below.

In Explosive Contractors, 46 FMSHRC __, No. CENT 2024-0122 (Dec. 4, 2024), I dissented and explained that Congress did not grant the Commission the authority to reopen final orders under section 105(a) of the Mine Act. The Commission’s repeated invocation of Federal Rule of Civil Procedure 60(b) cannot overcome the statutory language. However, in Belt Tech, I explained in my concurrence that “the Act clearly states that to become a final order of the Commission, the operator must have received the notification from the Secretary.” Belt Tech, Inc., 46 FMSHRC __, slip op. at 3, No. WEVA 2024-0036 (Dec. 5, 2024) (citing Hancock Materials, Inc., 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for the proposition that the Commission may not reopen final orders under its statutory grant, but an operator may proceed if it has not properly received a proposed order.

In the instant case, as the Majority recounts, the operator received the final order. The Majority denies reopening in its opinion because the operator has not alleged good cause or provided a factual accounting for its failure to timely contest the penalties. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority in denying reopening in this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Adele L. Abrams, Esq.,

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place Suite D

Beltsville, MD 20705

safetylawyer@gmail.com

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris
USDOL/MSHA, OAASEI/CPCO
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

[1] The plant manager was also acting as the safety manager, following the resolution of the prior plant manager.

[2] In the Secretary’s surreply, she states that St. Marys recently filed a motion to reopen another proceeding (Docket No. LAKE 2023-0265) claiming that it failed to timely contest the assessment as a result of a mistake. However, as the Secretary identifies, the operator did timely contest the assessment in that proceeding; it’s the filing of a motion to reopen that was a mistake. In fact, on January 4, 2024, a Commission ALJ issued a decision approving the parties proposed settlement for that case. The Secretary argues “it is telling that St. Marys apparently does not know which penalties it has contested: [ ] this indicates an operator that does not have adequate procedures for contesting penalties or paying the requisite attention to their resolution.” Surreply at 7.