North American Salt Company (Commission decision, December 14, 2007)

Plain-English summary

MSHA's proposed assessment covered 31 citations issued to North American Salt Company. The company said it marked Citation No. 6240760 for contest on the assessment form and also sent an MSHA official a June 11 letter stating its intent to contest. MSHA had no record of receiving the assessment form, but the Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether good cause existed and whether the final order should be reopened.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The assessment for Citation No. 6240760 was remanded for a good-cause and reopening determination.
• Key point: Evidence that an operator marked and separately identified a citation for contest requires review when MSHA has no record of the filing.

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 14, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

NORTH AMERICAN SALT COMPANY

:

:

:

:

:

:

:

:

Docket No. CENT 2008-22-M
A.C. No. 16-00358-119151

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 September 24, 2007, the Commission received from

North American Salt Company (“North American Salt”) a letter 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 May 30, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment to North American Salt covering 31 citations. In its letter, North American Salt states that it attempted to contest one of the citations, No. 6240760, by checking the pertinent box on the assessment form. It also submits a letter allegedly sent to an MSHA official dated June 11, 2007, stating that it wanted to contest the citation. In response, the Secretary states that, although she has no record of receiving the assessment form, she does not oppose reopening the proceeding.

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 North American Salt’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 North American Salt’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.

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

Distribution:

Scott Fountain

North American Salt Company

P.O. Box 10

Lydia, LA 70569

W. Christian Schumann, Esq.

Office of the Solicitor

U. S. Department of Labor

1100 Wilson Boulevard, Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U. S. Department of Labor

1100 Wilson Boulevard, 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

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

Washington, D. C. 20001