Secretary of Labor v. CML Metals Corporation (Commission decision, November 5, 2015)

Plain-English summary

CML Metals failed to contest an MSHA penalty assessment within 30 days, so the assessment became a final Commission order. The company sought reopening about nine months later, explaining that it had no designated safety employee and different people handled MSHA matters at different times. The Commission held that an inadequate or unreliable internal processing system does not establish good cause, even though CML had since hired a full-time safety person. It also noted that CML waited far more than 30 days after MSHA sent a delinquency notice and gave no explanation for that additional delay, so reopening was denied.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: CML Metals' motion to reopen the final penalty assessment was denied.
• Key point: An operator's failure to assign reliable responsibility for MSHA penalty contests is an internal processing defect, not excusable neglect supporting reopening.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.

CML METALS CORPORATION

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Docket No.

A.C. No.

WEST 2014-347-M

42-01927-317091

BEFORE:  Jordan, Chairman; Young, Cohen, Nakamura and Althen, 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. (2012) (“Mine Act”). On January 31, 2014, the Commission received from CML Metals Corporation (“CML”) 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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on March 27, 2013, and became a final order of the Commission on April 26, 2013. CML implies that its delay in filing the motion to reopen was due to the lack of a designated “safety person” at the company who would be responsible for communicating with MSHA regarding contests of cited violations. Instead, different individuals handled safety matters during different periods of time. However, the operator asserts that it now has a designated “full time safety person” who will, presumably, be responsible for all future contests of violations cited by MSHA.

The Secretary opposes
the request to reopen and notes that a delinquency notice was mailed to the operator on June 11, 2013, and the case was referred to the U.S. Department of Treasury for collection on October 24, 2013.

The
Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). Here, the operator’s lack of a designated safety person to handle matters related to MSHA enforcement represents an inadequate internal processing system, and fails to establish good cause for reopening a final order.           Moreover, in considering whether an operator has unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has passed between an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of notice of delinquency must explain the reasons why the operator waited to file a reopening request, and lack of explanation is grounds for the Commission to deny the motion). Here, the delay in responding to MSHA’s delinquency notice amounted to far more than 30 days.

Accordingly,
we deny CML’s motion.                                  

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/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

/s/ William I. Althen

William I. Althen, Commissioner