**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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CASCADE  CONCRETE PRODUCTS    

 COMPANY,  INC.                                              | :

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Docket  No. WEST 2023-0100 

A.C.  No. 45-02295-563293

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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 January 12, 2023, the Commission receivedfrom Cascade Concrete Products Company, Inc. (“Cascade”) 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 September 19, 2022, andbecame a final order of the Commission on October 19, 2022. Cascade contendsthat it sent its notice of contest of three citations to MSHA’s penaltycollections office in St. Louis along with the payment of the uncontestedcitations. The Secretary does not oppose the request to reopen but notes thatnotices of contest should be mailed to MSHA’s Civil Penalty Compliance Officein Arlington, Virginia, while payments should be sent to MSHA’s collectionoffice in St. Louis. The Secretary urges the operator to take steps to ensurethat future penalty contests are timely filed. 

 

            Havingreviewed Cascade’s request and the Secretary’sresponse, we find that the failure to properly file the notice ofcontest was the result of inadvertent administrative error. We urge theoperator to take steps to ensure that such errors do not recur. Nevertheless,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:

MelissaHughes

OfficeManager

CascadeConcrete Products Co., Inc.

P.O.Box 387 

Winthrop,WA 98862

melissa@casconcrete.com

 

LukeHughes

Owner

CascadeConcrete Products Co., Inc.

P.O.Box 387 

Winthrop,WA 98862

luke@casconcrete.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