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.

 

LEHIGH CEMENT COMPANY, LLC

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Docket No. PENN 2023-0021

A.C. No. 36-00190-564266

 

 

 

 

BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

 

BY THE COMMISSION:

            This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 23, 2022, the Commission received from Lehigh Cement Company (“Lehigh”) 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 October 11, 2022, and became a final order of the Commission on November 10, 2022. The operator asserts that counsel unintentionaly failed to file to timely contest the assessment, in part because she mistakenly believed that all citations from the subject inspection had been contested in an earlier separate assessment. Counsel recognized that she made a mistake on November 22, 2022, and on the next day filed a motion to reopen 13 of the citations at issue.[1]  

 

Having reviewed Lehigh’s request and the Secretary’s response, we find that Lehigh has demonstrated that its failure to timely file to contest was the result of a mistake. We note that counsel and the operator recognized their error and promptly moved to reopen the citations. 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, Chair

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

 

Distribution:

 

Margaret S. Lopez, Esq.

OGLETREE, DEAKINS, NASH

SMOAK & STEWART, P.C.

1909 K Street, N.W., Suite 1000

Washington, DC 20006

margaret.lopez@ogletree.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] Specifically, Lehigh requests to reopen Citation Nos. 9667174, 9667177, 9667178, 9667180, 9667183, 9667188, 9667189, 9667192, 9667193, 9667195, 9667197, 9713407, and 9713410.