i 

February 2021 

TABLE OF CONTENTS 

COMMISSION ORDERS 

02-22-21 SOUTHERN AGGREGATES LLC CENT 2018-0403 Page 101 
ii 

No Review was granted or denied during the month of February 2021 

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

February 22, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, 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 August 6, 2018, the Commission received from Southern 

Aggregates LLC (“Southern Aggregates”) 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 June 12, 2018, and became a 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

SOUTHERN AGGREGATES LLC 

Docket No. CENT 2018-0403 

A.C. No. 16-01551-466607 

43 FMSHRC Page 101
final order of the Commission on July 12, 2018. The operator had failed to timely contest the 

proposed assessment, apparently due to its mistaken belief that there was a pending informal 

conference with MSHA that stayed its obligation to do so. Upon discovering its error during an 

internal review, the operator engaged with its legal counsel and submitted the Notice of Contest 

on July 18, 2018, only six days after the final order date. See Operator Ex. F. Furthermore, an 

affidavit from the mine’s safety representative states that the operator has since “created” a 

“procedure . . . to ensure that citations which Southern Aggregates intends to challenge are 

contested within 30 days of receipt of the Proposed Assessment, even any citations which are 

subject to a pending informal conference.” See Operator Ex. A. 

The Secretary does not dispute any of these facts in opposing the operator’s motion to 

reopen, but argues that the operator “fails to satisfy [the] . . . requirements . . . for obtaining 

reopening,” which involve providing an account of the “relevant dates,” a “clear explanation” for 

its failure to timely contest the penalty, the submission of supporting “affidavits,” and the like. 

See Sec’y Opp Br. It is clear, however, that Southern Aggregates has met these requirements. 

Having reviewed Southern Aggregates’ request and the Secretary’s response, we find that 

the operator made a mistake when it assumed the proposed assessment would not be processed 

during what it mistakenly believed was an ongoing informal conference process. 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/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 102
Distribution (e-mail): 

Nicholas W. Scala, Esq., 

Conn Maciel Carey PLLC, 

5335 Wisconsin Ave. NW, Suite 660 

Washington, DC 20015 

nscala@connmaciel.com 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

43 FMSHRC Page 103