Keystone Cement Company (Commission decision, September 14, 2010)

Plain-English summary

Keystone Cement missed the penalty-contest deadline after a plant manager submitted a conference request for seven citations in the assessment. The Secretary opposed reopening because the conference acknowledgment explained that the assessment still had to be contested and a conference request does not stop the deadline. Keystone said its general counsel, who oversaw MSHA compliance, did not know of the mistake, and the company changed its address so future correspondence would go directly to counsel. It also moved promptly after MSHA rejected the late contest. In the interests of justice, the Commission reopened the assessment, remanded the case, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The assessment was reopened and remanded for penalty proceedings.
• Key point: A conference request does not extend the penalty-contest deadline, but prompt correction and concrete procedural changes supported reopening here.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 14, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

KEYSTONE CEMENT COMPANY

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Docket No. PENN 2010-172-M

A.C. No. 36-00125-194419

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On December 8, 2009, the Commission received a motion by counsel to reopen a penalty assessment issued to Keystone Cement Company (“Keystone”) 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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).

On August 13, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000194419 to Keystone. Keystone asserts that its failure to timely file its contest was the result of confusion because it had submitted a conference request for seven of the citations contained on the proposed assessment. Keystone additionally contends that the error was made by a plant manager without the knowledge of the company’s general counsel, who oversees MSHA compliance. Keystone states that it has changed its address of record so that all correspondence will now be sent to the general counsel so as to avoid future mistakes. Keystone promptly filed its motion to reopen after receiving MSHA’s rejection of its contest.

The Secretary opposes the request on the ground that the letter acknowledging Keystone’s conference request specifically required the operator to contest the penalty assessment and that a conference request does not toll the time to contest a penalty.

Having reviewed Keystone’s motion and the Secretary’s response, in the interests 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.

Mary Lu Jordan, Commissioner

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Jeremiah J. Jowett, III, Esq.

Keystone Cement Co.

320-D Midland Parkway

Summerville, S.C. 29485

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021