Secretary of Labor v. South River Stone, LLC (Commission decision, January 12, 2016)

Plain-English summary

South River Stone asked the Commission to reopen a penalty assessment that became final after the company did not timely contest it. The company explained that the employee responsible for reviewing assessments was on leave because of a family illness when the assessment arrived. MSHA later sent a delinquency notice, but South waited more than 30 days to seek reopening. Because South did not explain that later delay, the Commission denied the motion.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 801, 815(a), 823(c)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: An operator that waits more than 30 days after a delinquency notice must explain the delay when seeking reopening.

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.

SOUTH
RIVER STONE, LLC

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:

:

:

:

:

:

Docket
No. VA 2015-287-M

A.C.
No. 44-06309-371526

BEFORE:  Young, Nakamura,
and Althen, Commissioners[1]

ORDER

BY THE
COMMISSION:

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.   
§ 801 et seq. (2012) (“Mine Act”). On August 10, 2015, the Commission received from South River Stone, LLC (“South”) 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 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 on January 7, 2015, and became a final order of the Commission on February 6, 2015. South asserts that the individual responsible for reviewing proposed assessments was on a leave of absence, due to an illness in the family, when the proposed assessment was delivered. The Secretary opposes the request to reopen and notes that a delinquency notice was mailed to the operator on March 30, 2015, and the case was referred to the U.S. Department of Treasury for collection on May 28, 2015.

In considering
whether an operator has unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has passed between an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of notice of delinquency must explain the reasons why the operator waited to file a reopening request, and lack of explanation is grounds for the Commission to deny the motion). Here, the delay in responding to MSHA’s delinquency notice amounted to more than 30 days. While South explained its failure to timely contest the proposed assessment, it failed to explain its delay in filing this motion to reopen after receiving the delinquency notice. This lack of explanation is grounds for denial.

Accordingly,
we deny South’s motion.         

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Josh
Schultz, Esq.

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

1625
17th Street

Denver,
CO 80202

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 30 U.S.C. § 823(c).