**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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LEHIGH  CEMENT COMPANY LLC                                             | :

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Docket  No. LAKE 2022-0204

A.C.  No. 12-00063-552413 |
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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 July 14, 2022, the Commission received fromLehigh Cement Company LLC (“Lehigh”) 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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered on April 4, 2022, andbecame a final order of the Commission on May 4, 2022. Lehigh asserts that on April18, 2022, it mistakenly mailed its notice of contest to the incorrect addressfor the payment of penalties in St. Louis, MO, instead of correctly mailing it toMSHA’s Civil Penalty Compliance Office in Arlington, Virginia. The Secretarydoes not oppose the request to reopen, but urges the operator to take steps toensure that future penalty contests are timely filed. 

 

            HavingreviewedLehigh’s request and the Secretary’s response, we find that the operatoracted with excusable neglect by inadvertently mailingthe notice of contest to the wrong address, despite doing so in a timely manner.The operator, however, should reassess itsprocedures to ensure that future contests are properly filed. 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

 

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

Distribution:

 

DerekM. Smith

LehighCement Company Mitchell

180North Meridian Road

Mitchell,IN 47446

Derek.Smith@lehighhanson.com

 

 

EmilyToler Scott, Esq.

Counsel,Appellate Litigation

Divisionof Mine Safety and Health

Officeof the Solicitor

U.S.Department of Labor

20112th Street South – Suite 401 

Arlington,VA 22202-5450

Scott.Emily.T@dol.gov

 

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

 

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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