**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)            

 

                        v.

 

HIGHWAY  MATERIALS, INC.                                             | :

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Docket  No. PENN 2023-0003

A.C.  No. 36-00128-556080 |
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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. (2018) (“Mine Act”). On October 6, 2022, the Commission receivedfrom Highway Materials, Inc. (“Highway Materials”) 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 3, 2022, and becamea final order of the Commission on July 5, 2022.

 

Highway Materials alleges that on December8, 2021, its Safety Coordinator “contested” Citation Nos. 9660855, 9660858, and9660854 by requesting a conference with an MSHA Conference LitigationRepresentative (“CLR”). The conference took place on March 3, 2022, and the CLRinformed the operator that he would subsequently inform the operator of hisfindings regarding the citations. The operator subsequently received a proposedassessment dated June 1, 2022, proposing civil penalties for the threecitations. On June 9, 2022, Highway Materials contacted MSHA about theconference results. The operator did not receive a response from MSHA untilAugust 17, 2022. On August 17, Material Highways received a “conference resultsletter” indicating that the citations should remain as issued. On August 18,MSHA mailed a delinquency notice to Highway Materials. 

 

The operator states that it believed thatit had 30 days from the date of the conference results letter to submit acontest of the proposed penalties, and filed a contest on September 8, 2022,with the Commission. After MSHA eventually received a copy of HighwayMaterial’s contest, it informed the operator by email dated September 21, 2022,that the contest was untimely. 

 

Contrary to Highway Material’s belief, acontest of proposed penalties must be filed with MSHA, rather than theCommission, within 30 days of the operator’s receipt of the proposed penaltyassessment, rather than receipt of the conference results letter.[1]30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. 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 in accordance with MSHA’s regulations at 30C.F.R. § 100.7 and the Commission’s procedural rules. 

 

            Havingreviewed Highway Material’s request and theSecretary’s response, we find there is sufficient evidence that mistakeswere made, thus satisfying the Rule 60(b) criteria. *See Keystone Cement Co.*,32 FMSHRC 1040 (Sept. 2010); *Hanson Aggregates Midwest, LLC*, 31 FMSHRC1292 (Nov. 2009); *South Ridge Granite Quarry*, 31 FMSHRC 873 (Aug. 2009).We find that Highway Materials acted diligently in attempting to discern thestatus of the penalties and promptly in filing its motion to reopen upondiscovery of its error. The operator’s good faith is demonstrated by its extensivelydocumented contacts with MSHA and the Secretary’s non-opposition. 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:

 

BrianN. Sheehy

SafetyManager

HighwayMaterials, Inc.

409Stenton Avenue

Flourtown,PA 19031

Brian.sheehy@depaulgroup.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]As theSecretary noted in her response, notices of contests of proposed penaltiesshould be mailed to MSHA’s Civil Penalty Compliance Office, 201 12th StreetSouth, Suite 401, Arlington, VA 22202.