Ararat Rock Products

Plain-English summary

Ararat Rock Products asked the Commission to reopen a penalty assessment after it apparently mailed its contest to the wrong location. The operator said it discovered the delinquency during a hearing in another case and paid the contested penalties under protest to avoid additional charges. The Secretary did not oppose reopening and urged Ararat to send future contests to MSHA's civil penalty compliance office. In the interests of justice, the Commission reopened the assessment and remanded it for further proceedings.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded for proceedings on the merits.
• Key point: Mailing a contest to the wrong office may support reopening when the operator intended a timely contest, acted after learning of the error, and the Secretary does not oppose relief.

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

December 20, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

ARARAT ROCK PRODUCTS

:

:

:

:

:

:

:

:

Docket No. SE 2012-360-M

A.C. No. 31-00002-274318

BEFORE: Jordan, Chairman; Young 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 March 26, 2012, the Commission received from Ararat
Rock Products (“Ararat”) a motion 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).

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).

MSHA’s record indicates that the proposed assessment was delivered on December 12,
2011, and became a final order of the Commission on January 11, 2012. Ararat asserts that it
timely mailed its notice of contest along with its payment for the uncontested penalties, but
believes it sent the penalty contests to the wrong location. Ararat states that it discovered the
delinquency during a hearing with MSHA for a different case. Ararat further states that it
submitted payment for the contested penalties in protest, to prevent any additional penalties. The
Secretary does not oppose the request to reopen, and notes that MSHA received payment for the
uncontested penalties, by check dated December 21, 2011. The Secretary urges the operator to
take steps to ensure that future penalty contests are timely filed and mailed to the civil penalty
compliance office in Arlington, VA.

Having reviewed Ararat’s request 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.

/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:

William A. Crossingham

Safety Director/Vice Pres.

Ararat Rock Products

P.O. Box 988

Mount Airy, NC 27030

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

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

Washington, D.C. 20001-2021