Upper Valley Materials, Inc. (Commission decision, December 4, 2006)

Plain-English summary

Upper Valley Materials said it did not receive two proposed penalty assessments when MSHA issued them in July and August 2006. The company said it first obtained the assessments when they were faxed to it on October 30, and the Secretary did not oppose reopening. The Commission remanded for the chief judge to determine whether Upper Valley had good cause for not contesting earlier and whether relief from the final penalty orders 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 two final penalty orders.
• Key point: A claim that proposed assessments were never received requires fact-finding before final orders may be reopened.

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

December 4, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

UPPER VALLEY MATERIALS, INC. ,

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Docket No. CENT 2007-37-M

A.C. No. 41-03510-92607

Docket No. CENT 2007-38-M
A.C. No. 41-03510-94926

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 November 2, 2006, the Commission received from
Upper Valley Materials, Inc. (“Upper Valley”) a request from its safety director seeking to reopen penalty assessments that had become final orders 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 July 5, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment, A.C. No. 41-03510-92607, to Upper Valley for citations issued in April 2006. In addition, MSHA issued proposed penalty assessment A.C. No.

41-03510-94926 on August 8, 2006, for a citation issued in April 2006. Upper Valley states that it did not receive the proposed penalty assessments until they were faxed to it on October 30, 2006. The Secretary states that she does not oppose Upper Valley’s request to reopen the penalty assessments.

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 Upper Valley’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 Upper Valley’s failure to timely contest the penalty proposals and whether relief from the final orders 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

______

Michael G. Young, Commissioner

Distribution

James B. Elliott, Director of Safety

Upper Valley Materials, Inc.

7301 W. Exp. 84

Mission, TX 78572

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

Myra James, Chief

Office of Civil Penalty Compliance

U.S. Department of Labor, MSHA

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209

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