.
KAISER CEMENT CORPORATION
April 17, 2001
WEST 2001-182-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
April 17, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 2001-182-M
: A.C. No. 04-04075-05588
v. :
: Docket No. WEST 2001-183-M
KAISER CEMENT CORPORATION : A.C. No. 04-04075-05590
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
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. (1994) ("Mine
Act"). On January 23, 2001, the Commission received from
Kaiser Cement Corporation ("Kaiser") a request to reopen
penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. � 815(a). The Secretary of Labor does not oppose
Kaiser's motion for relief.
Under section 105(a) of the Mine Act, an operator has 30
days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that
it wishes to contest the proposed penalty. 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).
In its request, Kaiser, which is represented by counsel,
asserts that it mishandled and inadvertently paid two proposed
penalty assessments associated with citations that it had
previously contested. Mot. at 1-3. Specifically, Kaiser
submits that on March 16-18, 1999, it received the underlying
citations from the Department of Labor's Mine Safety and Health
Administration ("MSHA"), and on April 15, 1999, it filed Notice
of Contests for each citation. Id. at 1. Kaiser contends that
its contests were docketed and assigned to Administrative Law
Judge Richard W. Manning, who granted the Secretary's request
to stay proceedings pending the issuance of the associated
proposed penalties. Id. at 1-2. It asserts that in July 1999,
its Safety Director Danny Lowe, who had handled the citations,
left Kaiser, and that its Purchasing Director, Jack Hewton,
temporarily assumed the responsibilities of Safety Director.
Id. at 2. Subsequently, on January 24 and April 3, 2000, Kaiser
contends that Hewton received the proposed penalty assessments
for the underlying citations and, unaware that Kaiser had
previously contested the underlying citations, initiated payment.
Id. at 2-3. Kaiser asserts that payment of the proposed
assessments and failure to submit the green cards were the
result of an administrative mistake and miscommunication during
a transition period in its safety department, amounting to
inadvertence or a genuine mistake, and that it intended to
continue to contest the citations and penalties. Id. at 3-4.
It also argues that genuine issues exist regarding the merits of
the civil penalties and underlying citations, and requests that
the Commission grant its request for relief. Id. Attached to
its request is the affidavit of Jack Hewton which supports
Kaiser's allegations. Attach.
We have held that, in appropriate circumstances, we
possess jurisdiction to reopen uncontested assessments that
have become final under section 105(a). Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal
Co., 16 FMSHRC 1931, 1932 (Sept. 1994). We have also observed
that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the
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). In reopening
final orders, the Commission has found guidance in, and has
applied "so far as practicable," Fed. R. Civ. P. 60(b). 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. In accordance with
Rule 60(b)(1), we previously have afforded a party relief from
a final order of the Commission on the basis of inadvertence
or mistake. See Nat'l Lime & Stone Co., Inc., 20 FMSHRC 923,
925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15
(Oct. 1997).
The record indicates that Kaiser intended to contest the
proposed penalty assessments, but that it failed to do so in a
timely manner due to internal mismanagement. The declaration
attached to Kaiser's request appears to be sufficiently
reliable and supports Kaiser's allegations. In the
circumstances presented here, we will treat Kaiser's late
filing of a hearing request as resulting from inadvertence or
mistake.[1] See Martin Marietta Aggregates, 22 FMSHRC 1178,
1179-80 (Oct. 2000) (granting motion to reopen where operator's
inadvertent payment of the proposed assessment was due to
processing error by its accounts payable department and
operator attached notarized statement supporting its
allegations); Doe Run Co., 21 FMSHRC 1183, 1184-85 (Nov. 1999)
(granting the motion to reopen where the employee responsible
for handling penalties was out of the country and mishandling of
the proposed assessments resulted in mistaken payment); Cyprus
Emerald Res. Corp., 21 FMSHRC 592, 593-94 (June 1999) (granting
motion to reopen where operator supported its allegation that
it mistakenly paid proposed penalty assessment with an
affidavit).
Accordingly, in the interest of justice, we grant Kaiser's
request for relief, reopen these penalty assessments that became
final orders, and remand to the judge for further proceedings on
the merits. The case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
William K. Doran, Esq.
Heenan, Althen & Roles
1110 Vermont Avenue, N.W., Suite 400
Washington, D.C. 20005
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Tamara Nelson
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
4015 Wilson Blvd., Suite 900
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
**FOOTNOTES**
[1] In any case, Commissioners Riley and Verheggen would
grant Kaiser's request for relief on the basis that it is not
opposed by the Secretary, and because no other circumstances exist
that would render such a grant problematic.