**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH     

  ADMINISTRATION  (MSHA)          

 

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CEMEX  CONSTRUCTION MATERIALS 

  SOUTH,  LLC                                          | :

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Docket  No. CENT 2021-0207

A.C.  No. 41-04827-536222 |
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BEFORE: Jordan,Chair; Althen, Rajkovich, and Baker, Commissioners

**ORDER**

 

BY: Jordan, Chair;Althen and Rajkovich, Commissioners: 

 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On September 21, 2021, the Commission receivedfrom Cemex Construction Materials South, LLC (“Cemex”) 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).

 

MSHA records indicate that the proposedassessment was mailed via the USPS to the operator on June 8, 2021. USPSrecorded the date of delivery as June 16, 2021. On July 16, 2021, the proposedassessment was deemed a final order of the Commission because the operator hadnot filed a Notice of Contest within 30 days. On August 31, 2021, MSHA mailed adelinquency notice to the operator. 

 

Cemex does not dispute that the assessmentwas mailed to the correct address. However, Cemex has no record of receivingthe assessment. The Secretary has provided a delivery confirmation, whichcontains “COVID” in the signature block. The exact method of deliveryconfirmation is unclear. The Secretary of Labor does not oppose the request toreopen.

 

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 September 21,2021, within 30 days of the operator’s receipt of the delinquency notification,mailed on August 31, 2021. Therefore, the motion to reopen was filed within areasonable amount of time.

 

            Havingreviewed Cemex’s request and the Secretary’sresponse, we find that Cemex 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

 

 

 

 

Commissioner Baker, dissenting:

 

Irespectfully dissent. 

 

In thepast, the Commission has held that where a failure to contest a proposedassessment results from an inadequate or unreliable internal processing system,the operator has not established grounds for reopening the assessment*. See,e.g., Shelter Creek Capital, LLC*, 34 FMSHRC 3053, 3054 (Dec. 2012); *OakGrove Res., LLC*, 33 FMSHRC 103, 104 (Feb. 2011); *Double Bonus Coal Co.*,32 FMSHRC 1155, 1156 (Sept. 2010).

 

As setforth in the majority opinion, the Secretary provided USPS documentationshowing Cemex received its proposed assessment on June 16, 2021. OnJuly 16, 2021, the proposed assessment was deemed a final order of theCommission. Following receipt of a delinquency notice, Cemex filed a Motion to Reopen.It concedes that the proposed assessment was delivered to the correct addressbut alleges that it has no record of the delivery. In short, after delivery theassessment was not routed to the person at Cemex responsible for itsprocessing. Cemex provides no explanation for thisfailure.

 

CommissionProcedural Rule 25, 29 C.F.R. § 2700.25, provides that “[t]he Secretary, bycertified mail, shall notify the operator or any other person against whom apenalty is proposed of the violation alleged, the amount of the proposedpenalty assessment, and that such person shall have 30 days to notify theSecretary that he wishes to contest the proposed penalty assessment.” 

 

 TheUSPS receipts show Cemex, as an entity, received the assessments. Therefore,the Secretary delivered the assessments as required pursuant to CommissionProcedural Rule 25.  Once Cemex received the assessment, it was responsible forensuring that it was reviewed by the appropriate personnel and processed in atimely manner. Its failure to do so demonstrates an inadequate or unreliableinternal processing system. 

 

Therefore,I would find that Cemex failed to establish good cause and deny Cemex’s motionto reopen.

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

Distribution:

MichaelT. Cimino, Esq.

JacksonKelly PLLC

P.O.Box 553

Charleston,WV 25322

mcimino@jacksonkelly.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