**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.

 

IRONSIDE  STONE WORKS INC.                                        | :

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Docket  No. WEST 2022-0216

A.C.  No. 24-02209-545701 |
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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 April 19, 2022, the Commission receivedfrom Ironside Stone Works, Inc. (“Ironside”) 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 January 31, 2022, and became afinal order of the Commission on March 2, 2022. Ironside asserts that theassessment was delivered to the operator’s mine site rather than the office,and was subsequently taken home by the mine operator while he was oncompassionate leave. As a result, the assessment did not reach the office untilFebruary 21, 2022. The operator filed the contest paperwork in mid-March, approximatelytwo weeks after the order became final. 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reviewed Ironside’s request and the Secretary’sresponse, we find that the delay in filing the penalty contest was theresult of inadvertence and excusable neglect. 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:

 

AdamKorpi, President

IronsideStone Works, Inc.

4303Frontage Dr.

HelenaMT 59602

adamk@ironsidestoneworks.com

 

EmilyToler-Scott, Esq.

Officeof the Solicitor

U.S.Department of Labor

20112th St. 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

 

ChiefAdministrative Law Judge Glynn Voisin

FederalMine Safety & Health Review Commission

1331Pennsylvania Ave. N.W., Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

 

MelanieGarris

Officeof Civil Penalty Compliance

MineSafety and Health Administration

U.S.Department of Labor

20112th St. South, Suite 401

Arlington,VA 22202-5450

Garris.Melanie@dol.gov