Secretary of Labor v. Petro Chemical Insulation, Inc. (Commission decision, May 18, 2015)

Plain-English summary

Petro Chemical Insulation attempted to contest an MSHA penalty assessment during the October 2013 federal government shutdown. The company produced a UPS delivery report and said it had requested a conference and repeatedly followed up with MSHA. The Secretary confirmed that the contest was returned undelivered because the government was shut down from October 1 through October 16 and did not oppose relief. The Commission held that Petro had timely contested the assessment, so it never became a final order. It denied the reopening motion as moot and remanded the active case for further proceedings.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was denied as moot, and the case was remanded because the timely contest prevented finality.
• Key point: An assessment contest returned because of a federal shutdown remains timely and does not require reopening under Rule 60(b).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

:        Docket No. WEST 2014-169-M

v.                                              
 :        A.C. No. 04-00743-333178-V7D   

:                   

PETRO
CHEMICAL INSULATION, INC.   :

BEFORE:
Jordan, Chairman; Young, Nakamura, and Althen, Commissioners[1]

ORDER

BY THE
COMMISSION:

This matter
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.    § 801 et seq. (2012) (“Mine Act”). On December 23, 2013, the Commission received from Petro Chemical Insulation, Inc. (“Petro”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Records of the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that on October 1, 2013, Petro received a proposed penalty assessment from the Secretary. On October 31, 2013, the proposed assessment was deemed a final order of the Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.

Petro
asserts that it submitted a letter requesting a conference on October 10, 2013, and made numerous attempts to follow up with MSHA on the case. Petro offers a UPS delivery report for the attempted delivery of the contest form. The Secretary does not oppose the request to reopen and notes that the contest was returned undelivered due to the Federal government shutdown that occurred from October 1 – 16, 2013.

Having reviewed Petro’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested the proposed assessment. Accordingly, the operator’s motion to reopen is moot, and this case is remanded 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.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Cohen has elected not to participate in this matter.