**FEDERALMINE 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                   :           Docket No. LAKE2023-0148

   ADMINISTRATION (MSHA),                  :           A.C. No. 33-01355-564439

                                                                        :           

v.                                                         :           

:

SELECT MATERIALS                                  :

                                                                        :

 

 

 

BEFORE:  Jordan,Chair; Althen, Rajkovich, and Baker, Commissioners

 

            

**ORDER**

 

BY THE COMMISSION: 

                                                                                                                 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On April 11, 2023, Select Materials filed amotion to reopen the captioned case which had become a final order of theCommission pursuant to section 105(a) of the Mine 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). *Jim Walter Res., Inc.,* 15 FMSHRC 782, 786-89(May 1993) (“*JWR*”). In evaluating requests to reopen final orders, theCommission has found guidance in Rule 60(b) of the Federal Rules of CivilProcedure, under which the Commission may relieve a party from a final order ofthe Commission on the basis of mistake, inadvertence, excusable neglect, orother reason justifying relief. *See* 29 C.F.R. § 2700.1(b) (“theCommission and its Judges shall be guided so far as practicable by the FederalRules of Civil Procedure”); *JWR*, 15 FMSHRC at 787. We have also observedthat default is a harsh remedy and that, if the defaulting party can make ashowing of good cause for a failure totimely respond, the case may be reopened and appropriate proceedings on themerits permitted. *See Coal Prep. Servs., Inc.,* 17 FMSHRC 1529, 1530(Sept. 1995).

 

            SelectMaterials filed a *pro se* motion to reopen, contending that it did notreceive the proposed assessment in the mail. The motion states that on March14, 2023, the mine operator was first notified that it owed penalties when anMSHA inspector hand-delivered a delinquency letter to its mine site.[1]

 

            TheSecretary opposes reopening these final orders. The Secretary demonstrates theU.S. Postal Service (“USPS”) originally attempted to deliver the proposedassessment via certified mail on October 8, 2022 to the operator’s address ofrecord in Howard, Ohio. Thereafter, the operator was sent multiple noticesindicating that the USPS was attempting to deliver certified mail. Sec’y Ex. B.On October 31, 2022, USPS returned the item to its sender after it wentuncollected.  

 

On January 20, 2023, theSecretary claims she sent the operator a delinquency notice. The Secretary thenlater hand-delivered a letter warning the operator that the Secretary wouldtake additional enforcement actions if the operator did not remit payment ofthe penalties within 30 days. On April 10, 2023, MSHA issued the operator acitation alleging a failure to pay the penalties.[2]On April 11, 2023, the operator filed the subject motion to reopen.  

 

After considering theoperator’s motion and the Secretary’s opposition to that motion, we concludethat the operator has failed to fulfill its burden to demonstrate that itsfailure to timely file to contest was the result of a mistake, excusableneglect, or some other good cause reason. 

 

The Commission requires that:

 

An operator seeking to reopen a proceeding after afinal order is effective bears the burden of establishing an entitlement toextraordinary relief. At a minimum, the applicant for such relief must provideall known details, including relevant dates and persons involved, and a clear explanationthat accounts, to the best of the operator's knowledge, for the failure tosubmit a timely response and for any delays in seeking relief once the operatorbecame aware of the delinquency or failure. The operator must also identify whichspecific citations or orders in the assessment it wishes to contest uponreopening. Affidavits from persons involved in and knowledgeable of thesituation and pertinent documents should be included with the request to reopen.

*HigginsStone Co., Inc*., 32 FMSHRC 33, 34(Jan. 2010). Select Materials motion does contain the aforementionedinformation. The operator does not account for its failure collect thecertified mailings after receiving multiple notices, including a notice thatindicated that MSHA was attempting to deliver a package.[3] Furthermore, the operator’s motion completely lacks adescription of its normal personnel and processes used to receive and contest proposedassessments. Accordingly, it does not demonstrate that the failure to contestwas not due to its own inadequate or unreliable procedures.[4] Finally, the operator’s motion does not explain itsdelay in seeking to reopen after receipt of the January delinquency letter.   

 

            Becausewe conclude that the operator’s failure to contest was not the result of a goodcause, its motion is DENIED with prejudice. 

 

 

 

/s/Mary Lu Jordan

Mary LuJordan, 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:

 

Ronald Karns

Production Manager

26900 Coshocton Rd.

Howard, OH 43028

field@selectmaterials.net

 

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

 

Melanie Garris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

Chief Administrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Office of the Chief Administrative LawJudge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov

 

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[1] The operator states that the letter contained anunfamiliar address and person in Texas; it speculates that these errors mayhave contributed to its failure to receive the original proposed assessment. There,however, is no evidence that the proposed assessment was mailed to the Texasaddress. To the contrary, the Secretary has provided detailed postal recordsdemonstrating that delivery of the proposed assessment was attempted to theoperator’s correct address in Howard, Ohio. Sec’y Ex. B.

 

[2] On April 25, 2023, after receiving the citation, theoperator paid the civil penalties. 

[3]The Secretarynotes that “[c]ertified Mail from MSHA almost certainly contains proposedpenalty assessments.”It is wellrecognized that a movant’s good faith or lack thereof is an important factor indetermining whether good cause exists to reopen a final order. *See, e.g.*,*Stone Zone*, 41 FMSHRC 272, 274 (June 2019) (citations omitted). 

 

[4] The Commission has made it clear that where a failureresults from an inadequate or unreliable internal processing system, theoperator has not established grounds for reopening the assessment. *Oak GroveRes., LLC*, 33 FMSHRC 103, 104 (Feb. 2011); *Double Bonus Coal Co*., 32FMSHRC 1155, 1156 (Sept. 2010); *Highland Mining Co*., 31 FMSHRC 1313,1315 (Nov. 2009); *Pinnacle Mining Co*., 30 FMSHRC 1066, 1067 (Dec. 2008);*Pinnacle Mining Co*., 30 FMSHRC 1061, 1062 (Dec. 2008)