**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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BEFORE:  Jordan,Chair; Althen, Rajkovich, and Baker, Commissioners

            

            

**ORDER**

 

BY THE COMMISSION:

                                                                                                                 

            Thiscase arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On May 17, 2023, the Commission received from HeidelbergMaterials US Cement LLC (“Heidelberg”) a motion to reopen a final order of theCommission pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of theCommission. 30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontestedassessments that have become final Commission orders under section 105(a). *JimWalter Res., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure, under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See* 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe 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 andthat, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may bereopened and appropriate proceedings on the merits permitted. *See Coal Prep.Servs., Inc.,* 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered to the operator on March13, 2023. On March 19, 2023, Heidelberg timely contested five of the 38proposed penalties contained in the assessment. The remaining 33 uncontested penaltiestherefore became final orders of the Commission 30 days later (April 12, 2023).On May 10, 2023, the Secretary of Labor filed a penalty petition for the fivecontested citations. 

 

On May 17, 2023, the operator filed amotion to reopen three of the originally uncontested penalties.[1]Heidelberg alleges that it intended to contest those three citations, butfailed to as a result of a mistake. As specified in an attached affidivt, theoperator’s Safety Manager states that she omitted the fourth page of theassessment when scanning the documents, which led to her failure to contestcitations listed on that page when transmitting the contest form to MSHA. TheSecretary opposes the operator’s motion, alleging that Heidelberg does not providea sufficent explanation of the mistake. 

 

We find that the operator has established thatit was acting in good faith. It timely filed a contest form, albeit incomplete,and then promptly filed the subject motion after receiving the penalty petition.The Secretary’s penalty peititon was filed on May 10, 2023 and the operator’smotion to reopen was filed one week later. The timing of that filing appears toindicate that the operator reviewed the penalty petition, recognized its error,and moved to reopen before receiving a notice of delinquency. The Commision hasheld that quick action after recognizing an error militates in favor ofreopening. “Motions to reopen received within 30 days of an operator’s receiptof its first notice from MSHA that it has failed to timely file a notice ofcontest will be presumptively considered as having been filed within areasonable amount of time.” *Highland Mining Co*., 31 FMSHRC 1313, 1316-17(Nov. 2009).  Further, Heidelberg affirms that it submitted a positionstatement to MSHA addressing the allegations in Citation No. 9628458 (one ofthe citatons subject to this motion), as part of a special investigation onMarch 16, 2023. The submission of this position statement is at least somecircumstantial evidence of an intent to contest the citation. 

 

            Additionally,we find that the operator sufficiently explained the nature of the mistake,supported by a relevant affidavit. The Commission requires that “[a]t aminimum, the applicant for such relief must provide all known details,including relevant dates and persons involved, and a clear explanation thataccounts, to the best of the operator's knowledge, for the failure to submit atimely response and for any delays in seeking relief once the operator becameaware of the delinquency or failure. . . .” *Lone Mountain,*35 FMSHRC at3345 (*citing Higgins Stone Co*., 32 FMSHRC 33, 34 (Jan. 2010)). Here, theoperator provided pertinent details including the party involved, relevantdates, and a clear explanation of procedures used to send contests. Accordingly,based upon the operator’s explanation of its procedures, its attentiveness uponreceiving the penalty petition and quick action thereafter, we find that itsfailure to timely contest the citations on the fourth page of the assessmentwas the result of a good faith mistake, and not the result of unreliableprocedures.   

 

 We therefore conclude that the operatorhas established good cause for its failure to timely file in thesecircumstances. In the interest of justice, wehereby reopen Citation Nos. 9628458, 9628337, and 9628453 and remand the matter to the Chief Administrative LawJudge for further proceedings pursuant to the Mine Act and the Commission’sProcedural Rules, 29 

C.F.R. Part 2700. Accordingly, consistent with Rule 28, theSecretary shall file a petition for assessment of penalty within 45 days of thedate 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:

 

WilliamK. Doran, Esq.

MargaretS. Lopez, Esq.

Ogletree,Deakins, Nash, Smoak &Stewart, P.C.

1909K Street, N.W., Suite 1000

Washington,DC 20006

Willaim.doran@ogletree.com

Margaret.lopez@ogletree.com

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov

 

 

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[1] The operator requeststo reopen Citation Nos. 9628458, 9628337, and 9628453.