Secretary of Labor v. Buzzi Unicem USA (Commission decision, August 3, 2021)

Plain-English summary

Buzzi Unicem intended to contest part of a proposed penalty assessment but sent the contest to MSHA's St. Louis collections office instead of agency headquarters. It learned of the error from a delinquency notice and promptly moved to reopen. The Secretary did not oppose the motion and confirmed that Buzzi had paid 24 of the 30 citations. The Commission found inadvertent mailing error, reopened the assessment, and remanded it for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: Sending a contest to MSHA's collection office instead of the proper contest address was excusable inadvertence.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA)           

v.

BUZZI
UNICEM USA

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:

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Docket
No. CENT 2021-0051-M

A.C.
No. 41-00283-520326

BEFORE:  Traynor, Chair;
Althen and Rajkovich, 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. (2012) (“Mine Act”). On December 18, 2020, the Commission received from Buzzi Unicem USA (“Buzzi”) 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 1, 2020, and became a final order of the Commission on October 1, 2020. Buzzi asserts that due to a mailing error, the contest was sent to MSHA’s St. Louis, Missouri collections office, rather than MSHA headquarters in Arlington, Virginia. Buzzi states that it learned of the error upon receipt of a delinquency notice on November 24, 2020 and then promptly filed a motion to reopen. The Secretary does not oppose the request to reopen and confirms that it received partial payment for 24 of the 30 citations at issue on September 24, 2020.

Having
reviewed Buzzi’s request and the Secretary’s
response, we find that Buzzi’s failure to timely contest was due to an inadvertent mailing error. 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Tonya
Osteen

Buzzi
Unicem USA

Highway
608

P.O.
Box 1639

Sweetwater,
TX 79535

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]