**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.

 

WAYNE  J. SAND & GRAVEL, INC.                                            | :

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Docket  No. WEST 2022-0295

A.C.  No. 04-01915-551153

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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 August 1, 2022, the Commission receivedfrom Wayne J. Sand & Gravel, Inc. (“WJSG”) 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 April 10, 2022, andbecame a final order of the Commission on May 10, 2022. WJSG asserts it neverreceived the mailed proposed assessment and notes the operation’s remote location.After receiving a delinquency notice on June 28, 2022, the operator requested acopy of the proposed assessment on July 19, and submitted its notice of contest(by fax) the same day. 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.

 

Tracking data from the United StatesPostal Service indicates the assessment package was delivered to a CaliforniaPost Office and marked available for pickup on March 18, 2022, then sent backto its facility of origin on April 4. The Secretary asserts the assessment was finallydelivered on April 10, but was not signed for. It is unclear whether WJSG’sfailure to receive the assessment package was the result of a USPS mailprocessing error (e.g. incorrect address) or operator error (e.g. failure toregularly check a P.O. Box). 

 

We strongly encourage the operator toenact procedures to ensure mail is timely received despite the operation’sremote location, such as regularly checking P.O. Boxes and ensuring personnelare available to sign for packages. Future motions to reopen may not be grantedwhere a notice of contest is untimely due to inadequate mail receiptprocedures.  

 

            Ultimately,however, having reviewed WSJG’s request and theSecretary’s response, we find that the delay in this instance wasexcusable. We note that, due to a mail processing error, WSJG did not timelyreceive the proposed assessment. Furthermore, WSJG promptly acted to file itsnotice of contest once it became aware of the issue. 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:

BrettJones

WayneJ. Sand & Gravel, Inc.

P.O.Box 27

Moorpark,CA 93020-0027

Fax:805-523-1805 

 

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

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov