FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

March 26, 2014

SECRETARY OF LABOR,                                      

 MINE SAFETY AND HEALTH                             

 ADMINISTRATION (MSHA)

 

                  v.

 

CLEAN HARBORS ENVIRONMENTAL                 

 SERVICES, INC.

 

 

 

            Docket No. WEST 2013-899-M              

            A.C. No. 02-00024-317010 RUZ

 

 

                                                                             

 

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) (AMine Act@). On June 17, 2013, the Commission received from Clean Harbors Environmental Services, Inc. (AClean Harbors@) 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) (AJWR@). 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) (Athe 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 (AMSHA@) indicate that the proposed assessment was delivered on March 28, 2013, and became a final order of the Commission on April 29, 2013. Clean Harbors asserts that it mistakenly believed that it did not need to contest the proposed assessment because it had previously contested the underlying citations. Clean Harbors= counsel discovered the delinquency after receiving MSHA=s late notice dated May 16, 2013. Clean Harbors states that it now understands that a separate notice must be submitted to contest a proposed assessment and has taken steps to ensure that this mistake does not happen again. The Secretary does not oppose the request to reopen.

 

Having reviewed Clean Harbors= 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., Commissioner

 

 

 

/s/ Patrick K. Nakamura        

Patrick K. Nakamura, Commissioner

                                                                                                                                                           

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

Distribution:

 

Dale B. Rycroft, Jr., Esq.

The Rycroft Law Firms, PLLC

2929 N. Power Rd., Suite 101

Mesa, AZ 85215

drycraft@rycraftlaw.com

 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

 

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710