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. CSA MATERIALS, INC.

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Docket No. CENT 2016-300-M A.C. No. 41-05054-399318

BEFORE:  Althen, Acting Chairman; Jordan, Young, and Cohen, 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 April 5, 2016, the Commission received from CSA Materials, Inc. (“CSA Materials”) 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), 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 December 23, 2015, and became a final order of the Commission on January 22, 2016. CSA Materials asserts that it had always intended to contest the instant citation but that it mailed the contest form to MSHA’s St. Louis office along with the payment for a separate citation, rather than to the MSHA office in Arlington, Virginia. The operator subsequently received a delinquency letter from MSHA dated March 8, 2016. CSA Materials has not filed any other motions to reopen with the Commission in the last two years and filed its motion to reopen on April 5, 2016, less than 30 days after MSHA sent the delinquency notice.

The Secretary filed a Response on April 27, 2016, and confirmed that a payment for the separate citation was sent by CSA Materials on January 6, 2016. The Secretary included a copy of a certified mail envelope for that payment. 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 CSA Materials’ request and the Secretary’s response, we find that inadvertently mailed its contest to the wrong MSHA office. 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/ William I. Althen

                                                                                    William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

David Hartin

Safety Coordinator

CSA Materials Inc.

3001 Foster St.

San Angelo, TX 76903

Dale Thompson

Safety Director

CSA Materials Inc.

3001 Foster St.

San Angelo, TX 76903

Ali Beydoun, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450