Active Minerals International, LLC

Plain-English summary

Active Minerals paid two proposed penalties believing that payment would end litigation over the violations. After MSHA began a possible individual-liability investigation under section 110(c), the operator sought reopening so its payments would not be treated as admissions against the company or its agents. The Secretary stated that she would not argue that payment prevented the agents from litigating any part of the underlying violations. Because the closed assessments would not prejudice any future section 110(c) proceeding, the Commission denied reopening.

Decision snapshot

• Cited provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 815(a) and 820(c)
• Outcome: Both motions to reopen were denied.
• Key point: Paid assessments need not be reopened when the Secretary confirms that payment will not estop individuals in a later section 110(c) case.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

November 13, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

ACTIVE MINERALS

INTERNATIONAL, LLC 

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Docket No. SE 2012-262-M

A.C. No. 38-00157-267929

Docket No. SE 2012-285-M

A.C. No. 38-00157-261966

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On February 21 and 29, 2012, the Commission received from
Active Minerals International, LLC (“Active”) two motions seeking to reopen two penalty
assessments that had become final orders 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).

Active asserts that it paid the proposed penalties in the erroneous belief that payment
would end any litigation arising from the alleged violations. In her affidavit, Active’s safety
director contends that a significant factor in her decision to pay the citations was that the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) had not opened
special investigations under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Since MSHA
had initiated a section 110(c) investigation in February 2012, Active seeks to reopen these
matters to ensure that payment will not constitute an admission of wrongdoing on the part of the
company or its agents.

The Secretary opposes the requests to reopen, noting that the operator’s concerns are
unfounded. The Secretary assures the operator that if section 110(c) proceedings are initiated in
these matters, she will not argue that Active’s payment estops its agents from litigating any
aspect of the underlying violations.

Having reviewed Active’s requests and the Secretary’s responses, we conclude that the
outcome of the matters before us will not prejudice any future section 110(c) proceedings.
Accordingly, the motions to reopen are denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Adele L. Abrams, Esq.

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

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004