Butler Sand Company (Commission decision, November 27, 2006)

Plain-English summary

Butler Sand received a proposed penalty assessment around the time its assistant manager met with MSHA to discuss the underlying citations. The company took no action on the assessment while waiting for the conference result and later received collection letters for the unpaid penalties. The Secretary did not oppose reopening. The Commission remanded for the chief judge to determine whether Butler had good cause for missing the contest deadline and whether relief from the final penalty order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for findings on good cause and possible relief from the final penalty order.
• Key point: Waiting for an informal conference result does not stop the assessment deadline, but the resulting confusion may support reopening.

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

November 27, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

BUTLER SAND COMPANY,

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Docket No. SE 2007-26-M
A.C. No. 09-00267-87157

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On October 20, 2006, the Commission received from Butler Sand Company (“Butler”) a letter from its assistant manager 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).

On May 9, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment, A.C. No. 09-00267-87157, to Butler for several citations that Butler received in March 2006. Butler states that its assistant manager met with MSHA representatives on May 12, 2006, to resolve the citations. Butler received the proposed assessment at approximately the same time, but took no action with regard to it because Butler’s assistant manager was waiting to hear the results of that conference. In June and August, Butler received from MSHA’s Civil Penalty Compliance Office letters regarding the unpaid penalties. Butler states that it contacted MSHA officials regarding the letters. The Secretary states that she does not oppose Butler’s request to reopen the penalty assessment, A.C. No. 09-00267-87157.

We have held 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 inadvertence or mistake. 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).

Having reviewed Butler’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Butler’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Dennis Swearingen, Asst. Manager

Brown & Watson, Inc.

P.O. Box 1890

Butler, GA 31006

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

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