**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)            

 

                        v.

 

VULCAN  CONSTRUCTION  

  MATERIALS,  LLC                                                | :

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Docket  No. SE 2023-0043

A.C.  No. 31-01258-561300 |
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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 November 29, 2022, the Commission receivedfrom Vulcan Construction Materials, LLC (“Vulcan Construction”) 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 the proposed assessment was delivered to the operator via U.S. PostalService on August 29, 2022. On September 28, 2022, the proposed assessment wasdeemed a final order of the Commission because the operator had not filed aNotice of Contest within 30 days. On November 29, 2022, MSHA mailed adelinquency notice to the operator. 

 

            VulcanConstruction does not dispute that the assessment was mailed to the correctaddress. However, Vulcan Construction has no record of receiving theassessment. The operator asserts that the signature block on USPS’ deliveryconfirmation simply noted “V Construction,” therefore it cannot be certain who,if anyone, received the assessment. The exact method of delivery confirmationis unclear. The Secretary of Labor does not oppose the request to reopen.

 

We note that the motion to reopen wastimely filed. The Commission has previously 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 on November 29, 2022,the same day the operator received the delinquency notification. Therefore, themotion was filed within a reasonable amount of time.

 

            Havingreviewed Vulcan Construction’s request and theSecretary’s response, we find that the operator has demonstrated goodcause for its failure to timely respond and acted in good faith by timelyfiling its request to reopen. We also recognize that mail delivery was affectedby the unprecedented strain of the COVID 19 pandemic during the relevanttimeframe. 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:

 

BryanMoore

Safety& Health Manager

VulcanConstruction Materials, LLC

1090Moore Farms Drive

ChinaGrove, NC 28023

moorebr@vmcmail.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

Officeof the Chief Administrative Law Judge

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov