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.

 

CAMPBELL REDI-MIX, INC.

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Docket No.

A.C. No.

 

Docket No.

A.C. No.

 

        

WEST 2014-918-M

02-03022-350276

 

WEST 2014-917-M

02-03122-350278

 

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. (2012) (“Mine Act”).  On August 7, 2014 the Commission received from Campbell Redi-Mix, Inc. (“Campbell”) two motions seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.     § 815(a).[1]                                            

 

            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 assessments were delivered on May 15, 2014, and became final orders of the Commission on June 16, 2014.  Campbell has made partial payment of the proposed assessments.  Campbell asserts that it failed to timely contest the unpaid portion of the proposed assessments because it mistakenly failed to send its contests of the proposed assessments to the correct address.  The Secretary does not oppose the requests to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.                                                          

            Having reviewed Campbell’s request and the Secretary’s response, 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/ Mary Lu Jordan

                                                                        Mary Lu Jordan, Chairman

 

 

 

                                                                        /s/ Michael G. Young

                                                                        Michael G. Young, Commissioner

 

 

 

/s/ Robert F. Cohen, Jr.

                                                                         Robert F. Cohen, Jr., Commission

 

 

 

                                                                        /s/ Patrick K. Nakamura

                                                                        Patrick K. Nakamura, Commissioner

 

 

/s/ William I. Althen

                                                                        William I. Althen, Commissioner      


[1] Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate docket numbers WEST 2014-918-M and WEST 2014-917-M, both captioned Campbell Redi-Mix, Inc., and both involving similar procedural issues. 29 C.F.R. § 2700.12.