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

Plain-English summary

Lehigh Southwest Cement asked the Commission to reopen a penalty assessment that had become a final Commission order. The Secretary did not oppose the request. The Commission granted the motion without describing why the company missed the contest deadline. It remanded the matter to the Chief Administrative Law Judge and directed the Secretary to file a penalty petition within 45 days. The Commission expressly stated that granting this motion was not precedent for any other reopening request.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act; 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: The unopposed reopening was expressly nonprecedential and the order did not state the factual grounds for relief.

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 2016-464-M

v.                                                 
:      A.C. No. 04-00034-402554

:                                                        

LEHIGH
SOUTHWEST CEMENT                   :

COMPANY                                                      :

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”).  The Commission has received a motion from the operator seeking to reopen a penalty assessment which had become a final order of the Commission pursuant to section 105(a) of the Mine Act,  30 U.S.C. § 813(a).  The Secretary states that he does not oppose the motion.

Having
reviewed movant’s unopposed motion to reopen, we 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. 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.

The
granting of this motion is not precedential for the consideration of any other motion before the Commission.

/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:

Richard
Larch

Safety
Manager

Lehigh
Southwest Cement Company

15390
Wonderland Blvd.

Redding,
CA 96003

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