Polycor Colorado Stone Quarries (Commission decision, May 8, 2008)

Plain-English summary

MSHA proposed penalties for 12 citations issued to Polycor Colorado Stone Quarries. Polycor said it intended to contest them, but a misunderstanding with counsel about the scope of the representation caused the contest to be filed after the 30-day deadline. The Secretary did not oppose reopening. The Commission remanded for the Chief Administrative Law Judge to determine whether the misunderstanding established good cause and whether relief from the final assessment 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 a determination of good cause and entitlement to relief.
• Key point: A misunderstanding between an operator and its counsel about responsibility for filing a contest requires a factual good-cause determination.

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, D.C. 20001

May 8, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

POLYCOR COLORADO STONE QUARRIES

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Docket No. WEST 2008-475-M

A.C. No. 05-04438-129279

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 February 25, 2008, the Commission received from Polycor Colorado Stone Quarries (“Polycor”) a motion made by counsel 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 October 17, 2007, the Department of Labor’s Mine Safety and Health Administration issued Proposed Assessment No. 000129279 to Polycor, proposing penalties for 12 citations that had been issued to the company earlier in the year. According to Polycor, it intended to contest the penalties. However, Polycor states that, due to a misunderstanding between it and its counsel regarding the scope of counsel’s engagement in representing Polycor in contest proceedings, a contest of the proposed assessment was not filed until January 14, 2008, well after the contest was due. The Secretary states that she does not oppose Polycor’s request to reopen the proposed penalty assessment.

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 Polycor’s motion, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Polycor’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:

James J. Gonzales, Esq.

Holland & Hart, LLP

555 Seventeenth St., Suite 3200

P.O. Box 8749

Denver, CO 80201-8749

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department 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