Secretary of Labor v. Glacier Stone Supply, LLC (Commission decision, April 27, 2010)

Plain-English summary

Glacier Stone Supply wanted to contest a penalty assessment for an October 2009 citation. It sent its notice of contest to the wrong MSHA office and also paid the penalty, but told the Commission it still wished to pursue the challenge and requested a conference. The Secretary did not oppose reopening and urged Glacier to use the office specified on future contest forms. In the interests of justice, the Commission reopened the assessment and remanded it for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The paid assessment was reopened and remanded for proceedings on the citation.
• Key point: Sending a contest to the wrong MSHA office may be excused when the operator still clearly seeks review and the Secretary does not oppose reopening.

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

April 27, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

v.

GLACIER STONE SUPPLY, LLC

:

:

Docket No. WEST 2010-630-M

A.C. No. 24-02236-205673

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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 1, 2010, the Commission received from Glacier Stone Supply, LLC (“Glacier”) 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, 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 Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000205673 to Glacier on December 10, 2009, proposing a penalty for a citation that had been issued to Glacier on October 21, 2009. Glacier states that it sent its notice of contest to the wrong MSHA office and that, while it wishes to pursue its contest, it has also paid the penalty. Glacier also requests a conference on the citation. The Secretary does not oppose reopening, but urges the operator to make certain in the future that it sends all notices of contest to the MSHA office specified on the contest form.

Having reviewed Glacier’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.

______

Mary Lu Jordan, Chairman

______

Michael F. Duffy, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner

Distribution:

Douglas Walker, Safety Mngr.

Glacier Stone Supply, LLC

955 Whitefish Stage Rd.

Kalispell, MT 59901

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