**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. 

 

NORTHSIDE  ROCK PRODUCTS LLC       |  

: 

: 

: 

: 

: 

: 

:  |  

 

 

Docket  No. WEST 2022-0288 

A.C.  No. 35-03850-558508 

  |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------|

 

 

 

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 February20, 2023, the Commission received from Northside Rock Products LLC (“Northside”)a motion seeking to reopen a penalty assessment proceeding and relieve it fromthe Default Order entered against it.  

 

OnSeptember 26, 2022, the Chief Administrative Law Judge issued an Order to ShowCause in response to Northside’s perceived failure to answer the Secretary ofLabor’s July 27, 2022, Petition for Assessment of Civil Penalty. By its terms,the Order to Show Cause was deemed a Default Order on October 26, 2022, when itappeared that the operator had not filed an answer within 30 days. 

Northsideasserts that “the paperwork had been put in the wrong file,” that the operatorhad mistakenly believed that an answer had been filed, and that the mistake wasnot discovered until February 20, 2023. The Secretary opposes the request toreopen and argues that the operator does not explain exactly why the paperworkwas placed in the wrong file or what procedures may have been implemented toprevent future defaults. The Secretary also notes that the Department ofLabor’s Mine Safety and Health Administration (“MSHA”) sent Northside adelinquency notice on January 11, 2023.

 

TheJudge’s jurisdiction in this matter terminated when the default occurred. 29C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s proceduralrules, relief from a Judge’s decision may be sought by filing a petition fordiscretionary review within 30 days of its issuance. 30 U.S.C. §823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not directreview within 40 days of a decision’s issuance, it becomes a final decision ofthe Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here hasbecome a final decision of the Commission.

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”); *JimWalter Res., Inc.*, 15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. *See Coal Prep.Servs., Inc.*, 17 FMSHRC 1529, 1530 (Sept. 1995). 

 

Havingreviewed Northside’s request and theSecretary’s response, we conclude that the operator has failed toprovide sufficient information to determine whether good cause may exist toreopen the final order. Northside failed to provide a sufficiently detailedexplanation for its failure to timely file an answer, including any measures itmay have implemented to prevent future defaults, and the reasons why themisfiling was not discovered for more than a month after the delinquency noticehad been sent*. See Left Fork Mining Co.*, 31 FMSHRC 8, 11 (Jan. 2009). Accordingly,we deny Northside’s request to reopen without prejudice. The words “withoutprejudice” mean that Northside may submit another request to reopen theassessment.[1] 

 

 

 

/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: 

 

KimRedding 

Consultant 

N-ComplianceSafety Services, Inc.

2949S. Jiovanni Ave.

Meridian,ID 83642

redding1562@msn.com 

 

JennieApplebee

Member

P.O.Box 309

Banks,OR 97106

mlbecker@aol.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

----

[1] In the event thatNorthside chooses to refile its request to reopen, it should state withspecificity the facts and circumstances it believes would justify reopening thefinal order and should include any relevant documentation with the request.