**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.

 

STERLING  MATERIALS                                        | :

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Docket  No. KENT 2022-0127

A.C.  No. 15-18068-548406

 

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

**ORDER**

 

BY: Jordan, Chair;Althen and Rajkovich, Commissioners

            Thiscase arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On September 9, 2022, the Commission receivedfrom Sterling Materials (“Sterling”) a motion to reopen final orders of theCommission pursuant to section 105(a) of the 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 to the operator on January24, 2022 and became a final order of the Commission on February 23, 2022. Thereafter,MSHA received partial payment of the civil penalties. On April 12, 2022, MSHAsent the operator a delinquency notice. The operator then sent additionalpayments in satisfaction of the total assessed penalty for the six citations atissue in the assessment.  

 

            Sterlingasserts that it intended to contest the civil penalty associated with CitationNo. 9870856, but failed to timely file contest as a result of a clerical error.Sterling maintains that it confused the status of Citation No. 9870856 with thestatus of a similarly numbered citation (Citation No. 9870855). Sterling hadpreviously timely filed to contest the proposed penalty for the similarlynumbered citation.[1]The Secretary does not oppose the operator’s motion to reopen. 

 

            Havingreviewed Sterling’s request and the Secretary’sresponse, we find that Sterling demonstrated that its failure to timelyfile to contest the proposed penalty for Citation No. 9870856 was due to amistake and clerical error. In the interest ofjustice, we hereby reopen the contest of 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

 

 

 

 

 

CommissionerBaker, dissenting:

 

 

In this case, Sterling Materials failed totimely contest a proposed penalty and then paid the amount owed. For thereasons set forth in my dissent in *Omya Inc*., 45 FMSHRC___, 2023 WL2559811 (Mar. 9, 2023), I do not believe it is accurate to characterize thisaction as a justifiable mistake or excusable neglect. 

 

Therefore, I would deny its motion toreopen.

 

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

 

Distribution:

 

AdeleL. Abrams, Esq., CMSP

LawOffice of Adele L. Abrams, P.C.

4740Corridor Place, Suite D

Beltsville,MD 20705

safetylawyer@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 

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

 

 

 

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[1] Sterling’s motionmistakenly states that Citation No. 9870855 was part of Docket No. KENT2021-0129. In fact, Citation No. 9870855 was contained in Docket No. KENT2021-0130.