**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)            

 

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CRANESVILLE  AGGREGATES                                             | :

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Docket  No. YORK 2023-0032

A.C.  No. 30-00983-564611[1] |
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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. (2012) (“Mine Act”). On December 28, 2022, the Commission receivedfrom Cranesville Aggregates (“Cranesville”) 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 October 11, 2022, andbecame a final order of the Commission on November 10, 2022. Cranesvilleasserts that its Safety Department was undergoing a major personnel transitionwhen the proposed assessment was received: the safety director had semi-retiredand was working from home, a new safety director had not yet been hired, andthe safety manager was on leave until mid-November. As a result, the assessmentdid not come to the attention of the safety department until the week ofNovember 20, at which time it was promptly contested. MSHA received the noticeof contest on November 28, 2022, 18 days after the assessment became final. 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.

 

            Havingreviewed Cranesville’s request and theSecretary’s response, we find that the failure to timely contest theassessment was the result of a coincidental series of personnel issues, andtherefore unlikely to recur. *See River View Coal, LLC*, 45 FMSHRC __(June 2023).**We also note that the operator has no history of untimelyfiling, filed its notice of contest promptly once it became aware of the proposedassessment, and filed its motion to reopen relatively promptly thereafter. 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:

 

LyndseyGargano

EHSDirector

CranesvilleBlock Co. Inc.

1250Riverfront Center

Amsterdam,NY 12010

cbcsafetymgr@cranesville.com

 

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

Nelson.April@dol.gov

 

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

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@dol.gov

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] The AcknowledgementLetter previously issued in this docket incorrectly listed the assessmentcontrol number as 30-00983-546611.