Secretary of Labor v. Southern Ohio Sand

Plain-English summary

Southern Ohio Sand said it did not receive a proposed penalty assessment before the contest deadline. When it contacted MSHA and obtained a copy, it mailed a contest the same day, which the Secretary confirmed. The operator then changed its contest procedures, and the Secretary did not oppose reopening. The Commission reopened the final assessment and remanded it for penalty proceedings, with a petition due within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final penalty assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Promptly contesting an assessment upon first receiving a copy supported reopening when the operator also corrected its procedures.

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.

SOUTHERN
OHIO SAND,

:

:

:

:

:

:

:

Docket
No. LAKE 2015-193-M

A.C.
No. 33-04427-362138

BEFORE:  Jordan,
Chairman; Cohen, and Nakamura, Commissioners[1]

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, 2014, the Commission
received from Southern Ohio Sand (“Southern”) 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 24, 2014, and
became a final order of the Commission on October 24, 2014. MSHA mailed a
delinquency notice to the operator on December 9, 2014. Southern asserts that it
did not receive the proposed penalty until it contacted MSHA to request a copy
on November 21, 2014. Southern claims that it filed a contest the same day, and
the Secretary confirms that a contest was mailed on November 21, 2014. The
operator has since implemented changes to its contest procedures. 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.

Having
reviewed Southern’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/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Brad
Stewart

Foreman

Southern
Ohio Sand

255
Wickline Rd.

Beaver,
OH 45613

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] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen. 30 U.S.C. § 823(c).