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),                                  v. CEDAR LAKE MINING, INC.

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Docket No. SE 2019-254 A.C. No. 01-03444-493538

BEFORE:  Rajkovich, Chairman; Jordan, Young, 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 September 24, 2019, the Commission received from Cedar Lake Mining, Inc. (“Cedar Lake”) 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 June 20, 2019, and became a final order of the Commission on July 20, 2019. Cedar Lake asserts that it timely contested three citations issued in connection with an accident that occurred on December 11, 2018 but that MSHA only designated two of the citations as having been timely filed. However, Cedar Lake provided signed Notices of Contest and certified mailing receipts that indicated that the contest was mailed to the Secretary a few days after the thirty-day deadline had passed. MSHA issued a delinquency notice to Cedar Lake on September 4, 2019, which led the operator to promptly seek to reopen this case. 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 Cedar Lake’s request and the Secretary’s response, we find that Cedar Lake missed the contest deadline by only a few days and that it promptly sought to have the case reopened upon discovering its mistake. 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/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

                                                            Michael G. Young, Commissioner

/s/ William I. Althen

                                                            William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution (e-mail):

Rachel H. Cobble, Esq.

robble@friedman-lawyers.com

Emily Scott, Esq.

Office of the Solicitor

Scott.Emily.T@dol.gov

Chief Administrative Law Judge Glenn Voisin

Federal Mine Safety & Health Review Commission

GVoisin@fmshrc.gov

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

Garris.Melanie@DOL.GOV