Secretary of Labor v. Huber Carbonates, LLC

Plain-English summary

Huber Carbonates sought permission to file a late contest of a section 104(b) withdrawal order. The company had already timely contested the penalty assessment for the underlying citation, which allowed the withdrawal order to be challenged in that penalty case. While the reopening motion was pending, the ALJ approved a settlement resolving both the citation and the withdrawal order. The Commission dismissed the reopening motion as moot.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(b), 815(a); 29 C.F.R. §§ 2700.1(b), 2700.21(b)
• Outcome: The motion to reopen was dismissed as moot.
• Key point: A section 104(b) order can be challenged with its underlying citation in a penalty proceeding, and no reopening remained necessary after settlement.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                            :

MINE SAFETY AND HEALTH                  
:

ADMINISTRATION (MSHA)                     
:

:

v.                                            
:          Docket No. LAKE 2019-0236

:          A.C.
No. 11-02627- 487245

HUBER CARBONATES, LLC                      :

:

BEFORE: Rajkovich, Chairman; 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 April 25, 2019, the Commission received
from Huber Carbonates, LLC (“Huber”) a motion seeking to permit late filing of
its notice of contest of a non-assessable section 104(b) withdrawal order, 30
U.S.C. § 814(b), issued on March 14, 2019. The Commission has decided to
construe Huber’s motion as a motion to reopen pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the motion.

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).

The Commission
has further held that “a section 104(b) withdrawal order may be contested under
section 105(a) in a civil penalty proceeding regardless of whether it was
separately contested under section 105(d).” UMWA v. Maple Creek Mining, Inc .,
29 FMSHRC 583, 591 (July 2007). Our Maple Creek holding is consistent
with the Commission’s procedural rule, which states that: “An operator’s
failure to file a notice of contest of a citation or order issued under section
104 of the Act, 30 U.S.C. 814, shall not preclude the operator from
challenging, in a penalty proceeding, the fact of violation or any special
findings contained in a citation or order . . .” 29 C.F.R. § 2700.21(b). We
have held that this regulation plainly permits a challenge to a section 104(b)
withdrawal order in the civil penalty proceeding that includes the citation
underlying the withdrawal order. Maple Creek , 29 FMSHRC at 592.

In
the instant case, although Huber has moved to essentially reopen LAKE 2019-236
to permit contest of section 104(b) Order No. 8672913, the record shows that
the proposed assessment for underlying Citation No. 8672912 was properly
contested and was the subject of Docket No. LAKE 2019-237. As Huber timely
contested the penalty assessment for underlying Citation No. 8672912, the
assessment was not a final order and reopening LAKE 2019-236 is unnecessary. Moreover,
since the filing of this motion to reopen, the Judge assigned to the penalty
docket has since issued a decision approving the settlement of underlying
Citation No. 8672912, as well as Order No. 8672913.

Because
Order No. 8672913 has been resolved, the motion to reopen this case is moot. See
Olmos Contracting 1, LLC , 39 FMSHRC 2015, 2019 (Nov. 2017) (“As this matter
was timely contested and has now been resolved, the motion to reopen this case
is moot.”); Kembel Sand & Gravel , 33 FMSHRC 1153, 1153-54 (June
2011). Accordingly, this motion is dismissed.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III,
Commissioner

Distribution:

R. Henry Moore

Arthur M. Wolfson

Patrick W. Dennison

Fisher & Phillips LLP

Six PPG Place

Pittsburgh, PA 15222

[email protected]

[email protected]

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

Division of Mine Safety and
Health

201 12th Street South, Suite
401

Arlington, VA 22202-5450

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]