Secretary of Labor v. Carmeuse Lime and Stone, Inc.

Plain-English summary

Carmeuse had already filed Commission contests for three of the thirteen penalties in an assessment. Its senior safety manager was on vacation when MSHA issued the assessment, received only an electronic copy, and mistakenly failed to submit the penalty contest after returning. Carmeuse monitored MSHA's website, discovered the final orders, and moved to reopen before MSHA sent a delinquency notice. The Secretary did not oppose relief. The Commission found mistake and a clear intent to contest, reopened the matter, and urged Carmeuse to establish backup procedures when the manager responsible for twelve mines is unavailable.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: Existing contest filings and prompt self-monitoring supported reopening, but a multi-mine filing process needs vacation backup coverage.

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.

CARMEUSE
LIME AND STONE, INC.

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Docket
No. LAKE 2023-0074

A.C.
No. 12-00426-566346

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On January 26, 2023, the Commission received
from Carmeuse Lime and Stone, Inc. (“Carmeuse”) 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 November 16, 2022, and
became a final order of the Commission on December 16, 2022. Carmeuse asserts
that it timely filed Notices of Contest with the Commission for three of
thirteen penalties at issue. [1]
When MSHA issued the proposed assessment, Carmeuse’s Senior Area Safety and
Health Manager was on vacation. He did not receive a paper copy of the
assessment (receiving an electronic version instead) and, upon his return, he
mistakenly failed to file a timely contest. However, Carmeuse diligently
monitored MSHA’s website and quickly learned that the citations had become
final orders. Carmeuse then promptly filed a motion to reopen prior to the
issuance of a delinquency notice. The Secretary does not oppose the request to
reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed. [2]

Having
reviewed Carmeuse’s request
and the Secretary’s response, we find that the operator clearly
expressed its intent to contest the citations by initiating contest proceedings
with the Commission and that Carmeuse’s failure to timely file a contest with
MSHA was due to inadvertence or mistake within the meaning of Rule 60(b)(1). Asarco
LLC , 42 FMSHRC 308, 310 (Apr. 2020). Moreover, Carmeuse diligently
monitored MSHA’s website to assess the status of the penalties and took prompt
action to file a motion to reopen after it discovered its mistake. In the interest of justice, we hereby 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. Accordingly, 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.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/
Timothy J. Baker

Timothy
J. Baker, Commissioner

Distribution:

Arthur
M. Wolfson, Esq.

Fisher
& Phillips LLP

6
PPG Place, Suite 830

Pittsburgh,
PA 15222

[email protected]

R,
Henry Moore, Esq.

Fisher
& Phillips LLP

6
PPG Place, Suite 830

Pittsburgh,
PA 15222

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

Patrick
W. Dennison, Esq.

Fisher
& Phillips LLP

6
PPG Place, Suite 830

Pittsburgh,
PA 15222

[email protected]

[1] The Contest
Proceedings are docketed as LAKE 2023-005, LAKE 2023-0008, and LAKE 2023-0009.

[2] According to
Carmeuse, its Senior Area Safety and Health Manager is responsible for reviewing
and contesting all proposed penalties received at 12 of the operator’s mines. Given
the importance of this position in the contesting process, we urge Carmeuse to
ensure backup procedures are in place for receiving proposed penalties when the
manager is unavailable.