**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.

 

MULBERRY  LIMESTONE QUARRY

CO., INC                                        | :

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Docket  No. CENT 2023-0190

A.C.  No. 23-02543-570964 |
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BEFORE: Jordan, Chair;Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On May 16, 2023, the Commission received from MulberryLimestone Quarry, Co.. Inc. (“Mulberry”) 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) (“*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 February 13, 2023 and became a final order of the Commissionon March 15, 2023. MSHA received partial payment of the assessment on March 14,2023, a day before the assessment became a final order of the Commission. Adelinquency notification was mailed to the operator on May 1, 2023, anddelivered on May 8, 2023. The Secretary does not oppose the request to reopen.

 

Payments for uncontested citations must bemailed to MSHA’s Lock Box in St. Louis, Missouri. However, contests of proposedassessments must be mailed to a different MSHA address in Arlington, Virginia. OnMarch 10, 2023, Mulberry correctly mailed its payment of the uncontestedcitations to St. Louis. However, Mulberry mistakenly mailed its contest alongwith its payment to the St. Louis address.[1] Mulberry did notbecome aware of its failure to timely contest the assessment until it receiveda delinquency notice on May 8, 2023. Upon receiving the delinquency notice,Mulberry promptly contacted MSHA, who informed them of their mistake.

 

We note that the motion to reopen wastimely filed. The Commission has previously heldthat “[m]otions to reopen received within 30 days of an operator’s receipt ofits first notice from MSHA that it has failed to timely file a notice ofcontest will be presumptively considered as having been filed within areasonable amount of time.” *Highland Mining Co.,*31 FMSHRC 1313, 1316-17(Nov. 2009). Here, the motion to reopen was filed on May 16, 2023,within 30 days of the receipt of the delinquency notification on May 8, 2023. Therefore,the motion to reopen was filed within a reasonable amount of time.

 

Having reviewed Mulberry’s request and the Secretary’s response, we find that Mulberryhas demonstrated good cause for its failure to timely respond and acted in goodfaith by timely filing its request to reopen. 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, Chair

 

 

 

/s/William I. Althen

WilliamI. Althen, Commissioner

 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner

 

 

 

Distribution:

MattBlessant

TammyWyland

MulberryLimestone Quarry Co., Inc.

1608W. 4th Street

Pittsburg,KS 66762 

mulberrylimestonequarry@gmail.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] In its motion toreopen, Mulberry implies that the same envelope which contained the check forthe uncontested citations also included the form indicating that Mulberrywished to contest a portion of the assessment. Mulberry also asserts that MSHAwas able to locate the contest of the assessment, but determined that thecontest had been received at the St. Louis, Missouri address.