Secretary of Labor v. Industrial Process Equipment Constructors (Commission decision, May 22, 2019)

Plain-English summary

Industrial Process Equipment Constructors sought to reopen a penalty assessment after an error during informal negotiations with MSHA. The company said it typed the wrong citation number in an email requesting a conference, which caused MSHA to modify the wrong citation in its records. The contest deadline passed before the error was discovered, and Industrial Process paid the penalty in full. It moved to reopen 30 days after the assessment became final, and the Secretary did not oppose. The Commission found that the missed deadline resulted from a mistake, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened, and the case was remanded for further proceedings.
• Key point: A citation-number typo during informal negotiations supported relief when the operator explained the mistake and sought reopening.

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.

INDUSTRIAL
PROCESS EQUIPMENT

CONSTRUCTORS

:

:

:

:

:

:

:

Docket
No. LAKE 2018-302-M

A.C.
No. 20-00038-463276

BEFORE:  Rajkovich,
Chairman; Jordan, Young, Althen, and Traynor, 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 July 2, 2018, the Commission received from Industrial Process Equipment Constructors (“Industrial Process”) 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 April 30, 2018, and became a final order of the Commission on May 30, 2018.

Industrial Process asserts that
its failure to timely contest was the result of a typography error during informal negotiations with an MSHA representative. After MSHA issued Citation No. 8952382 to Industrial Process on March 19, 2018, Industrial Process requested an informal conference with a local MSHA representative in order to seek modifications to the cited safety standard. On May 8, 2018, the requested conference was held. As a result of the conference, changes were made to the citation. However, Industrial Process asserts that it typed the wrong citation number in the subject line of the email in which the May 8, 2018 conference was requested. Industrial Process asserts that, as a result of this typography mistake, the wrong citation was modified in MSHA records. By the time the mistake was discovered, the deadline for contesting the citation had passed. Industrial Process paid the penalty in full. Industrial Process filed a Motion to Reopen on June 29, 2018, 30 days after the Proposed Penalty Assessment became a final order of the Commission. The Secretary does not oppose the request to reopen.

Having
reviewed Industrial Process’s request and the Secretary’s response, we find that the operator’s failure to timely contest the assessment was the result of a mistake. 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/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/ s/ Michael G. Young

Michael G. Young, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner

Distribution:

Ralph
Zempel

IPEC
Safety Director

Industrial
Process Equipment Constructors

2905
M 68

Rogers
City, MI 49779-9674

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Acting
Chief Administrative Law Judge Jacqueline Bulluck

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