Secretary of Labor v. Lehigh Southwest Cement Company (Commission decision, March 28, 2017)

Plain-English summary

Lehigh timely contested an assessment that MSHA later split into multiple dockets. The company answered a show-cause order in the companion docket but overlooked the separate order in this case, causing a default. The Secretary did not oppose reopening but urged Lehigh to answer every penalty petition and take show-cause orders seriously. Because the default had already become a final Commission decision under the 40-day rule, relief required Commission action. The Commission reopened the proceeding in the interest of justice, vacated the default order, and remanded for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d); 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: The final default order was vacated and the penalty case was remanded.
• Key point: When one assessment is split into multiple dockets, the operator must respond separately in each, although a documented oversight may support reopening.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),        

v.

LEHIGH
SOUTHWEST CEMENT                                                                                                    

COMPANY

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Docket
No. WEST 2015-690-M

A.C.
No. 04-00034-380538

BEFORE:  Althen,
Acting Chairman; Jordan, 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. (2012) (“Mine Act”).  On November 6, 2015, the Commission received from Lehigh Southwest Cement Company (“Lehigh”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
September 3, 2015, the Chief Administrative Law Judge issued an Order to Show Cause in response to Lehigh’s failure to answer the Secretary of Labor’s July 21, 2015 Petition for Assessment of Civil Penalty.  By its terms, the Order to Show Cause was deemed a Default Order on October 5, 2015, when the operator failed to file an answer within 30 days.

MSHA records show that after Lehigh
filed a timely contest to a proposed assessment containing the citation herein and other citations, the proposed assessment was split into several dockets. The operator filed an answer to the Order to Show Cause in the other docket (WEST 2015-689-M) but did not file an answer in this docket.  Lehigh states that it failed to timely answer the Order to Show Cause here because in answering the Order to Show Cause in the other docket, it overlooked the fact that the proposed assessment had been split up.  The Secretary does not oppose the request to reopen.  However, he urges Lehigh to timely file an answer to all penalty petitions and to take Orders to Show Cause seriously.

The
Judge’s jurisdiction in this matter terminated when the default occurred.  29 C.F.R.   § 2700.69(b).  Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance.  30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a).  If the Commission does not direct review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.  30 U.S.C. § 823(d)(1).  Consequently, the Judge’s order here has become a final decision of the Commission.

Having
reviewed Lehigh’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Default Order.  Accordingly, 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/ William I.
Althen

William I.
Althen, Acting Chairman

/s/ Mary Lu
Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

Distribution:

Ramiro
Jimenez

Area
Safety and Health Manager

Cement
Operations

24001
Stevens Creek Blvd.

Cupertino,
CA 95014

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450