SECRETARY OF LABOR, v. GRANITE ROCK COMPANY |
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Docket No. WEST 2006-2-M |
BEFORE: Duffy, Chairman; Jordan, Suboleski, 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. (2000) ("Mine Act"). On October 3, 2005, the Commission received a letter from the safety and health services manager of Granite Rock Company ("Granite Rock") requesting that the Commission reopen a penalty assessment that became 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).
On January 20, 2005, the Department of Labor's Mine Safety and Health Administration ("MSHA") issued three citations to Granite Rock. The company asserts that when MSHA subsequently proposed penalties for the citations, it paid two of the penalties 1 but indicated that it wished to contest the remaining proposed penalty. Granite Rock further states that on September 22, 2005, it received a collection notice for the proposed penalty the company wished to contest. Granite Rock contacted MSHA and was told that the agency did not have a copy of the company's contest. The Secretary of Labor states that she does not oppose Granite Rock's request for relief.
We have held 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 inadvertence or mistake. 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).
Having reviewed Granite Rock's motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Granite Rock's apparent failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Footnote:
1 Attached to Granite Rock’s letter is a copy of a cancelled Granite Rock check payable to MSHA dated June 10, 2005 which the company states was tendered in payment for the two penalties. Also attached is a copy of the penalty proposal form from MSHA with three assessed penalties, indicating that Granite Rock wished to contest the penalty at issue here.
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Michael F. Duffy, Chairman
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Mary Lu Jordan, Commissioner
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Stanley C. Suboleski, Commissioner
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Michael G. Young, Commissioner
Distribution:
Michael Herges
Safety & Health Services Manager
Granite Rock Company
P.O. Box 50001
Watsonville, CA 95077-5001
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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