Foothills Contracting, LLC (Commission decision, May 4, 2012)

Plain-English summary

Foothills Contracting failed to contest a proposed penalty assessment within 30 days, causing it to become a final Commission order. The company said it was new, was working diligently to comply with regulatory requirements, and had corrected the cited oversights. The Secretary did not oppose reopening but warned that future late contests might be opposed. In the interests of justice, the Commission reopened the assessment, remanded it for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a) and 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded for penalty proceedings.
• Key point: A new operator's corrective efforts may support reopening with no Secretarial objection, but future untimely contests remain at risk.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 4, 2012

SECRETARY OF LABOR,  

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)  

v.

FOOTHILLS CONTRACTING, LLC  

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Docket No. KENT 2012-283

A.C. No. 15-17834-270397

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On December 9, 2011, the Commission received from Foothills Contracting, LLC (“Foothills”) 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 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 mistake, inadvertence, or excusable neglect. 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).

MSHA’s record indicates that the proposed assessment was delivered on October 28, 2011, and became a final order of the Commission on November 28, 2011. Foothills asserts that it is a new company, diligently trying to maintain all rules and regulations. Foothills further states that it has addressed and corrected all the citation oversights, and will prevent them from occurring again in the future. The Secretary does not oppose the request to reopen, but cautions she may oppose future untimely contests.

Having reviewed Foothills’ request and the Secretary’s response, in the interests 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Christopher D. Frederick, Esq.

Foothills Contracting, LLC

459 Main Street

West Liberty, KY 41472

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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