7/11 Materials, Inc. (Commission decision, June 23, 2010)

Plain-English summary

MSHA issued a proposed assessment to the Hiatt Ready Mix Mine before 7/11 Materials said it acquired the mine. The new owner stated that it had not received the citations or assessment and began contacting MSHA after receiving a delinquency notice. The Secretary did not oppose reopening and supplied copies of the missing documents. In the interests of justice, the Commission reopened the assessment. It gave 7/11 Materials 30 days to submit a contest to MSHA, after which any contested penalties would proceed under the Mine Act and Commission rules.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a) and 29 C.F.R. § 2700.1(b)
• Outcome: The assessment was reopened, and 7/11 Materials received 30 days to submit its contest to MSHA.
• Key point: A new mine owner that lacked the underlying assessment documents was allowed a fresh opportunity to contest after the Secretary supplied them.

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 23, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

7/11 MATERIALS, INC.

Docket No. WEST 2010-393-M

A.C. No. 04-04777-198717

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 December 28, 2009, the Commission received from 7/11 Materials, Inc. (“7/11 Materials”) a request 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 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).

On July 1, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000189717 to the Hiatt Ready Mix Mine. In its request, 7/11 Materials alleges that it took ownership of the mine on August 1, 2009, and that it had not received copies of the pertinent citations or the proposed penalty assessment. The operator asserts that it received a notice of delinquency on September 30, 2009, and contacted MSHA on numerous occasions to contest the penalty assessments.

The Secretary states that she does not oppose 7/11 Materials’ request to reopen the assessment and attaches copies of the proposed assessment and citations.

Having reviewed 7/11 Materials’ request and the Secretary’s response, in the interests of justice, we hereby reopen this matter. 7/11 Materials shall have 30 days from the date of this order to submit its contest to MSHA at the address contained on the proposed penalty assessment. If the penalty assessment is contested, the case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Brian Rose

Aggregates Mngr.

7/11 Materials, Inc.

517 Roney Trail

Chico, CA 95973

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