**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 THECOMMISSION:  

                                                                                                                 

            Thiscase arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”).  On March 5, 2023, the Commission receivedfrom St. Marys Cement (“St. Marys”) 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 CoalPrep. 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 December19, 2022, and became a final order of the Commission on January 19, 2023.  Inits motion to reopen, the operator states that its failure to timely file wasthe result of a mistake.  The operator asserts that the proposed assessment wasdelivered to the mine just prior to Christmas, at a time when personnel wereabsent.  At that time there also happened to be a change in safety leadership. The mine supervisor does not recall receiving the assessment.  Furthermore, theoperator believed that this citation was contested as part of a previousseparate assessment.  The operator discovered that this belief was mistaken onMarch 3, 2023, while reviewing MSHA’s Mine Data Retrieval System (“MDRS”).  TheSecretary does not oppose the operator’s request to reopen.  

 

Having reviewed St. Marys request and the Secretary’s response, we find that theoperator has demonstrated that its failure to timely file to contest was theresult of a mistake.  The operator demonstrated that the mistake was made ingood faith by pro-actively reviewing MSHA’s MDRS and promptly moving to reopenupon their discovery of the error.  In theinterest of justice, we hereby reopen this matter and remand it to the ChiefAdministrative Law Judge for further proceedings pursuant to the Mine Act andthe Commission’s Procedural Rules, 29 C.F.R. Part 2700.  Accordingly,consistent with Rule 28, the Secretary shall file a petition forassessment of penalty within 45 days of the date of this order. * See* 29C.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:

 

AdeleL. Abrams, Esq., 

LawOffice of Adele L. Abrams, P.C.

4740Corridor Place Suite D

Beltsville,MD 20705

safetylawyer@gmail.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