Western Technologies, Inc. (Commission decision, August 15, 2012)

Plain-English summary

Western Technologies asked the Commission to reopen a penalty assessment after a delinquency notice prompted an internal investigation. The company said the assessment had fallen through the cracks but also asserted that it was not responsible for the cited operator or equipment. The Secretary did not oppose reopening solely because of that responsibility dispute and urged the company to prevent future late contests. The Commission reopened the assessment in the interests of justice and remanded the matter for further proceedings. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: A substantial dispute over whether the named company was responsible for the cited operator or equipment can support reopening despite an internal missed deadline.

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

August 15, 2012

SECRETARY OF LABOR,                                

MINE SAFETY AND HEALTH                       

ADMINISTRATION (MSHA)  

v.

WESTERN TECHNOLOGIES, INC. 

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Docket No. WEST 2012-356-M

A.C. No. 02-03021-267632

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, 2011, the Commission received from Western Technologies, Inc. (“WTI”) 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 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 proposed assessment was delivered on September 28, 2011, and became a final order of the Commission on October 28, 2011. WTI asserts that it received a delinquency notice, dated December 13, 2011, which prompted an investigation by its general counsel’s office. WTI states that although this proposed assessment apparently “fell through the cracks,” WTI is not responsible for the operator or the equipment in the citation. The Secretary does not oppose the request to reopen based solely on the fact that WTI asserts that it is not responsible for the equipment cited. However, the Secretary urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed WTI’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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy                                                                                     

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jeffrey R. Parker

Vice Pres. & Gen. Counsel

WTI, Inc.

3737 East Broadway Rd.

Phoenix, AZ 85040

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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