**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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THYSSENKRUPP

  INDUSTRIAL  SOLUTIONS                                               | :

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Docket  No. CENT 2022-0219

A.C.  No. 41-00071-551832

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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 August 18, 2022, the Commission received fromThyssenkrupp Industrial Solutions (“Thyssenkrupp”) 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). The Commission issued anorder requesting further information from the operator, which Thyssenkrupptimely responded to on August 9, 2023. 

 

            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 1, 2022, andbecame a final order of the Commission on May 2, 2022. Thyssenkrupp mailed itsnotice of contest on May 23, 2022. Thyssenkrupp asserts that it delayed becauseit was waiting for the MSHA District Office to provide a copy of one of thecitations that was missing from the assessment package. Thyssenkrupp eventuallymailed the notice of contest rather than continuing to wait, but due to thedelay, the filing was untimely. Thyssenkrupp eventually received a copy of themissing citation on June 30, 2022. 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 Thyssenkrupp’s request and the Secretary’s response, we find thatThyssenkrupp’s approximately three-week delay in filing while waiting for paperworkwas excusable. We note that the operator showed a good faith desire to contestthe assessment by ultimately choosing to file its notice of contest rather thancontinuing to wait. 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 o 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:

 

BrandonWitz

Headof Health & Safety

ThyssenkruppIndustrial Solutions

180Interstate North Pkwy Suite 300

AtlantaGA 30339

brandon.witz@thyssenkrupp.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