FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
June 2, 2009
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. LEHIGH SOUTHWEST CEMENT COMPANY |
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Docket No. WEST 2009-512-M A.C. No. 04-00034-168884 |
BEFORE: Duffy, Chairman; Jordan and Young, 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. (2006) (“Mine Act”). On February 17, 2009, the Commission received a request to reopen a penalty assessment issued to Lehigh Southwest Cement Company (“Lehigh Southwest”) that may have 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).
The record indicates that the operator sent the contest form to the St. Louis, MO address for penalty payments to the Department of Labor’s Mine Safety and Health Administration (“MSHA”), instead of to MSHA’s Arlington, VA address for notices of contests. The record also indicates that the contest form had been forwarded to and received by the proper MSHA office four days after the 30-day deadline. The Secretary states that she does not oppose the reopening of the assessment.
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Michael F. Duffy, Chairman
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Mary Lu Jordan, Commissioner
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Michael G. Young, Commissioner
Distribution:
Timothy King Safety Coordinator Lehigh Southwest Cement Company 15390 Wonderland Blvd. Redding, CA 96003
W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., Room 2220 Arlington, VA 22209-2296
Myra James, Chief 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 601 New Jersey Avenue, N.W., Suite 9500 Washington, D.C. 20001-2021