Secretary of Labor v. St. Marys Cement

Plain-English summary

St. Marys Cement received a proposed assessment shortly before Christmas while personnel were absent and safety leadership was changing. The company also mistakenly believed the citation had been contested through a different assessment. It discovered the error while proactively reviewing MSHA's data system on March 3 and moved to reopen two days later. The Secretary did not oppose relief. The Commission found a good-faith mistake, reopened the assessment, and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Proactive data review and immediate action supported relief from a holiday-period processing mistake.

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.

ST.
MARYS CEMENT

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Docket
No. LAKE 2023-0116

A.C.
No. 20-02434-568270

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE
COMMISSION:

        This

case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On March 5, 2023, the Commission received
from St. Marys Cement (“St. Marys”) a motion to reopen a final order of the
Commission pursuant to section 105(a) of the 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 to the operator on December
19, 2022, and became a final order of the Commission on January 19, 2023. In
its motion to reopen, the operator states that its failure to timely file was
the result of a mistake. The operator asserts that the proposed assessment was
delivered to the mine just prior to Christmas, at a time when personnel were
absent. At that time there also happened to be a change in safety leadership.
The mine supervisor does not recall receiving the assessment. Furthermore, the
operator believed that this citation was contested as part of a previous
separate assessment. The operator discovered that this belief was mistaken on
March 3, 2023, while reviewing MSHA’s Mine Data Retrieval System (“MDRS”). The
Secretary does not oppose the operator’s request to reopen.

Having reviewed St. Marys request and the Secretary’s response, we find that the
operator has demonstrated that its failure to timely file to contest was the
result of a mistake. The operator demonstrated that the mistake was made in
good faith by pro-actively reviewing MSHA’s MDRS and promptly moving to reopen
upon their discovery of the error. 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,
Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Adele
L. Abrams, Esq.,

Law
Office of Adele L. Abrams, P.C.

4740
Corridor Place Suite D

Beltsville,
MD 20705

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]