Lehigh Southwest Cement Company (Commission decision, June 2, 2009)

Plain-English summary

Lehigh Southwest sent its penalty contest form to MSHA's St. Louis payment address instead of the Arlington address specified for contests. MSHA forwarded the form to the proper office, which received it four days after the 30-day deadline. The Secretary did not oppose reopening. The Commission reopened and remanded the assessment, directed the Secretary to file a penalty petition within 45 days, and cautioned the company to use the specified contest address in the future.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The assessment was reopened and remanded for further proceedings.
• Key point: A contest timely sent to MSHA's payment address supported reopening when internal forwarding caused a four-day delay.

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

June 2, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

LEHIGH SOUTHWEST CEMENT COMPANY

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Docket No. WEST 2009-512-M
A.C. No. 04-00034-168884

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. (2006) (“Mine Act”). On February 17, 2009, the Commission received a request to reopen a penalty assessment issued to Lehigh Southwest Cement Company (“Lehigh Southwest”) that may have 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).

The record indicates that the operator sent the contest form to the St. Louis, MO address for penalty payments to the Department of Labor’s Mine Safety and Health Administration (“MSHA”), instead of to MSHA’s Arlington, VA address for notices of contests. The record also indicates that the contest form had been forwarded to and received by the proper MSHA office four days after the 30-day deadline. The Secretary states that she does not oppose the reopening of the assessment.

Having reviewed Lehigh Southwest’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. In the future, Lehigh Southwest should take care that it submits any contest form to the address MSHA has specified on the form.

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Distribution:

Timothy King

Safety Coordinator

Lehigh Southwest Cement Company

15390 Wonderland Blvd.

Redding, CA 96003

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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