Secretary of Labor v. Buzzi Unicem USA (Commission decision, November 17, 2015)

Plain-English summary

Buzzi Unicem missed the 30-day deadline to contest an MSHA penalty assessment, causing the assessment to become a final Commission order. Buzzi said it mistakenly believed the contest had been filed when it submitted partial payment for the uncontested penalties. The Secretary did not oppose reopening but reminded Buzzi that contests must go to MSHA's Civil Penalty Compliance Office rather than its payment center. The Commission reopened the assessment in the interest of justice and remanded it for proceedings on the merits, directing the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and the matter was remanded to the Chief Administrative Law Judge.
• Key point: An operator must send a contest to MSHA's penalty compliance office, but a mistaken belief that a contest accompanied partial payment supported reopening here.

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,

:

:

:

:

:

:

:

Docket
No. LAKE 2014-738-M

A.C.
No. 12-00064-355402

BEFORE:  Jordan,
Chairman; Young, Nakamura, and Althen, Commissioners1

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 September 19, 2014, 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 July 11, 2014, and became a final order of the Commission on August 11, 2014. Buzzi asserts that it mistakenly assumed that the contest was filed at the same time it submitted a partial payment for the uncontested penalties. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed. In addition, the Secretary reminds Buzzi that contests should be sent to MSHA’s Civil Penalty Compliance Office in Arlington, Virginia, not its Payment Processing Center in St. Louis, Missouri.

Having
reviewed Buzzi’s request and the Secretary’s
response, 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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Bradley
Davis

Safety
Manager

Buzzi
Unicem USA

3301
S. Country Rd., 150 W.

Greencastle,
IN 46135

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

1 Commissioner
Cohen has elected not to participate in this matter.