Essroc Cement Corp. v. Secretary of Labor (Commission decision, March 6, 2017)

Plain-English summary

Essroc Cement received an imminent-danger withdrawal order but missed the 30-day deadline to seek Commission review. Its safety manager mistakenly expected the order to appear in a later proposed penalty assessment and did not understand that an imminent-danger order carries no assessment that would create another contest opportunity. Essroc moved after legal counsel explained the separate deadline, and the Secretary did not oppose relief. The Commission found good cause to extend the filing period, accepted the late application for review, and remanded the contest for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 817(a), 817(e)(1); Commission Rule 9
• Outcome: The late contest of Order 8716832 was accepted and the case was remanded.
• Key point: A documented misunderstanding that an imminent-danger order must be contested directly within 30 days can support a good-cause extension.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

ESSROC
CEMENT CORP.   

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

:

:

:

:

:

:

:

Docket
No. WEVA 2014-818-RM

Order
No. 8716832; 02/12/2014

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 April 17, 2014, the Commission received from Essroc Cement Corp., (“Essroc”) a motion seeking to reopen or accept a late-filed contest for an imminent danger withdrawal order that had been issued pursuant to section 107(a) of the Mine Act, 30 U.S.C. § 817(a).

Under
section 107(e)(1) of the Mine Act, an operator who wishes to contest an imminent danger order under section 107(a) may request review by the Commission no later than 30 days after being notified of such order. Commission Procedural Rule 9 allows the Commission to extend the filing time for a document for good cause shown. 29 C.F.R. § 2700.9(a). The rule allows the Commission to grant motions for extensions of time after the designated filing time has expired if the party requesting the extension can show, in writing, the reasons for its failure to make the request before the filing deadline. 29 C.F.R. § 2700.9(b).

The
section 107(a) order that Jones seeks to contest was issued on February 12, 2014. Hence, the deadline for contesting it under section 107(e)(1) was March 14, 2014. Essroc asserts that it intended to contest the order, but mistakenly believed that it would be able to do so when it received a proposed assessment from MSHA. Essroc states that its Safety Manager did not understand that this order would not be assessed a penalty, and would have to be contested within 30 days of issuance, until Essroc’s legal counsel advised him of this fact. The Secretary has submitted a letter stating that it will not file an answer in this case until the Commission rules on Essroc’s motion, but does not oppose the operator’s request.

Relying
on Rule 60(b) of the Federal Rules of Civil Procedure, we have 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, appropriate proceedings on the merits may be permitted. See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995). We find that the same considerations apply to the order here under Commission Procedural Rule 9.

Having reviewed Essroc’s request and the Secretary’s response, in the interest of justice and judicial economy, we find that Essroc has shown good cause for us to extend the time to contest the order at issue. We further accept Essroc’s late-filed application for review of the imminent danger withdrawal order and remand the case 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:

Maxwell
K. Multer, Esq.

Dinsmore
& Shohl LLP

255
East Fifth Street

Suite
1900

Cincinnati,
OH 45202

Robert
Huston Beatty, Jr., Esq.

Dinsmore
& Shohl LLP

215
Don Knotts Blvd., Suite 310

Morgantown,
WV 26501

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