Ash Grove Cement Company, Inc. (Commission decision, November 13, 2006)

Plain-English summary

Ash Grove Cement intended to contest ten citations while paying the penalties for citations it did not dispute. Its accounting department mistakenly filed the contest form internally instead of mailing it to MSHA. The company discovered the error after receiving a delinquency notice, and the Secretary did not oppose reopening. The Commission remanded for the chief judge to determine whether Ash Grove had good cause for missing the deadline and whether relief from the final order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for findings on good cause and possible relief from the final penalty order.
• Key point: An internally filed but unmailed contest form may support reopening if the operator proves good cause.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 13, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ASH GROVE CEMENT COMPANY, INC.

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Docket No. CENT 2007-2-M

A.C. No. 25-00002-90499

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On October 10, 2006, the Commission received from Ash Grove Cement Company, Inc. (“Ash Grove”) a motion by counsel 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).

On June 8, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment to Ash Grove that included ten citations that Ash Grove states it intended to contest, as well as other citations it did not intend to contest. Ash Grove sent a check to MSHA for the assessments relating to the uncontested citations. However, Ash Grove further states that, due to an administrative error in its accounting department, the notice of contest was filed internally rather than mailed to MSHA. On September 8, Ash Grove received a notice that it was delinquent in paying the assessed penalties arising from the citations that it had intended to contest. Upon conducting an administrative investigation, Ash Grove ascertained that the contest form had never been mailed to MSHA. The Secretary states that she does not oppose Ash Grove’s motion to reopen the penalty assessment.

We have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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).

Having reviewed Ash Grove’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Ash Grove’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

William K. Doran, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

2400 N Street, N.W., 5th Floor

Washington, D.C. 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021