FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
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P&K STONE, LLC
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Docket No. CENT 2024-0295 A.C. No. 41-05110-596692
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BEFORE: Jordan, Chair; Baker, and Marvit, Commissioners
ORDER
BY: Jordan, Chair, and Baker, Commissioner
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On July 26, 2024, the Commission received from P&K Stone, LLC (“P&K”) 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 on April 12, 2024, the U.S. Postal Service attempted delivery of the proposed penalty assessment, but the assessment was marked “forward expired” and returned to MSHA. The proposed assessment became a final order of the Commission on May 13, 2024. On June 27, 2024, MSHA sent P&K a delinquency letter. In July 2024, MSHA received a partial payment in the amount of $5,237 from P&K.
P&K requests that the Commission reopen the final orders associated with five citations set forth in the proposed assessment[1] because it did not have the opportunity to file a timely contest due to an “error in delivery.” It explains that after the inspection involving the citations closed on February 13, 2024, the proposed assessment was not delivered to the mine. Rather, on July 11, 2024, the proposed assessment arrived at P&K’s main office located in McKinney, Texas. The operator submits that prior to the arrival in July, P&K did not receive any other correspondence from MSHA indicating that the operator was delinquent or that the penalties had become final orders.
The Secretary opposes the motion to reopen. She explains that on April 4, 2024, MSHA sent the assessment to P&K’s address of record, located in Chico, Texas. On April 12, 2024, the U.S. Post Office attempted delivery but returned the assessment to MSHA because there was no change of address on file. The Secretary states that P&K filed a new address of record on May 6, 2024, indicating that its new address is in McKinney, Texas, and that the operator received the delinquency notice at this new address. The Secretary asserts that there was no “error in delivery” because MSHA delivered mail to the operator’s address of record. She further argues that P&K failed to adequately explain the fundamental issue of why the proposed assessment was not deliverable to its address of record.
The Commission has held that “[m]otions to reopen received within 30 days of an operator's receipt of its first notice from MSHA that it has failed to timely file a notice of contest will be presumptively considered as having been filed within a reasonable amount of time.” Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopen was filed within 30 days of the operator’s receipt of the delinquency notice. Thus, the motion to reopen was filed in a reasonable amount of time.
A movant’s good faith is relevant in determining whether the movant has demonstrated good cause to reopen a final assessment. See, e.g., Rockwell Mining, LLC, 45 FMSHRC 743, 745 (Aug. 2023) (reopening where movant acted in good faith by timely filing its request to reopen); Brand Indus. Svcs, LLC, 46 FMSHRC 431 (July 2024) (relying upon operator’s good faith in determining whether to reopen when operator took prompt ameliorative action). We note that the operator filed its change of address form with MSHA on May 6, well before it received the delinquency notice. In fact, the operator filed its change of address form only 24 days after MSHA attempted delivery of the assessment to the operator’s prior address.
Having reviewed P&K’s request and the Secretary’s response, we find that the operator’s failure to timely contest the assessment was the result of mistake or excusable neglect. 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/ Timothy J. Baker
Timothy J. Baker, Commissioner
Commissioner Marvit, concurring:
I write to agree with the Majority in this case for the reasons set forth below.
In Explosive Contractors, 46 FMSHRC 965 (Dec. 2024), I dissented and explained that Congress did not grant the Commission the authority to reopen final orders under section 105(a) of the Mine Act. The Commission’s repeated invocation of Federal Rule of Civil Procedure 60(b) cannot overcome the statutory language. However, in Belt Tech, I explained in my concurrence that “the Act clearly states that to become a final order of the Commission, the operator must have received the notification from the Secretary.” 46 FMSHRC 975, 977 (Dec. 2024) (citing Hancock Materials, Inc., 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for the proposition that the Commission may not reopen final orders under its statutory grant, but an operator may proceed if it has not properly received a proposed order.
In the instant case, as the Majority recounts, the U.S. Post Office attempted delivery of the proposed order on April 12, 2024 and was then returned to MSHA. Therefore, there was no actual receipt of the notification as required under 30 U.S.C. § 815(a). While 30 C.F.R. § 100.8(a) deems service to be completed when assessments are “delivered” to the addresses of record for representative parties, here there was only attempted delivery. As such, in my opinion, the Commission’s order did not become final under the language of section 105(a) on May 13, 2024. Given then that the operator updated its address in a reasonable amount of time, receipt of the notification occurred with the delivery of the delinquency notice, after which the operator timely contested. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority though I believe the Commission is not reopening the matter.
/s/ Moshe Z. Marvit
Moshe Z. Marvit, Commissioner
Distribution:
Ramiro Jimenez
Plant Manager – Chico 1 Quarry
P&K Stone, LLC
6030 FM1810
Chico, TX 76431
rjimenez@pkstonellc.com
Thomas A. Paige, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
200 Constitution Avenue NW, Suite N4428
Washington, DC 20210
Melanie Garris
US Department of Labor/MSHA
Office of Assessments, Room N3454
200 Constitution Ave NW
Washington, DC 20210
Chief Administrative Law Judge Glynn F. Voisin
Office of the Chief Administrative Law Judg
Federal Mine Safety Health Review Commission
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
[1] The five citations include Citations Nos. 9748506, 9748508, 9748509, 9748510, and 9784512. MSHA applied P&K’s payment of $5,237 against the penalties associated with Citation Nos. 9748508 and 9748510. However, the penalties set forth on the proposed assessment, excluding the penalties for five citations that P&K intended to contest, total the amount of $5,237. We conclude that P&K’s partial payment does not moot its contest of the penalties associated with Citations Nos. 8748508 and 9748510 because it appears that the operator did not intend for its payment to be applied against those penalties.