**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.

 

HANSON  AGGREGATES

  PENNSYLVANIA  LLC                                          | :

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Docket  No. PENN 2022-0116

A.C.  No. 36-00091-552174

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BEFORE: Jordan,Chair; Althen, Rajkovich, and Baker, Commissioners

 

**ORDER**

 

 

BY:     Jordan,Chair; Rajkovich and Baker, Commissioners 

 

            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 3, 2022, the Commission received fromHanson Aggregates Pennsylvania LLC (“Hanson”) a document deemed to be 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 a proposed assessment was issued to the operator on March 29,2022. The Secretary claims that Hanson did not timely contest the proposedpenalties, and the penalties became a final order of the Commission on May 9,2022.[1]MSHA sent Hanson a delinquency notice on June 23, 2022. On August 3, 2022, theCommission received a notice of contest from Hanson, dated May 13, 2022,indicating Hanson’s contest of six of the citations listed on the proposedpenalty assessment. The Commission deemed the document received on August 3 tobe a request to reopen.

 

Because Hanson’s document does not explainthe company’s failure to contest the proposed assessment on a timely basis andis not based on any of the grounds for relief set forth in Rule 60(b), wehereby deny the request for relief without prejudice. *See Lehigh Sw. CementCo.*, 31 FMSHRC 595 (June 2009); *FKZ Coal Inc.*, 29 FMSHRC 177, 178(Apr. 2007). The words “without prejudice” mean that Hanson may submit anotherrequest to reopen the assessment.[2]

 

 

 

/s/ Mary Lu Jordan

MaryLu Jordan, Chair

 

 

 

/s/Marco M. Rajkovich, Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

/s/Timothy J. Baker

TimothyJ. Baker, Commissioner 

 

 

 

Commissioner Althen, dissenting:

            I respectfully dissent.

 

/s/William I. Althen

WilliamI. Althen, Commissioner 

 

 

 

 

Distribution:

 

Melinda Dibble 

JD Mining Safety Consultation, LLC. 

2117 Old Philadelphia Pike, Unit 401

Lancaster, PA 17602

JDMiningSafetyConsultation@gmail.com

 

TimothyPoppenberg

AreaOperations Manager

Hanson Aggregates Pennsylvania LLC

7660Imperial Way

Allentown,PA 18195

Timothy.Poppenberg@lehighhanson.com

 

GeraldSpearing

PlantManager 

HansonAggregates Pennsylvania LLC

7660Imperial Way

Allentown,PA 18195

Gerald.Spearing@lehighhanson.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

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] The Secretary didnot state when she believes the proposed assessment was received by Hanson.

 

[2] If Hanson submitsanother request to reopen, it must establish good cause for not contesting thecitations within 30 days from the date it received the citation from MSHA, and provideinformation about whether it has paid the penalties for the citations it chosenot to contest. Under Rule 60(b) of the Federal Rules of Civil Procedure, theexistence of “good cause” may be shown by a number of different factorsincluding mistake, inadvertence, surprise, or excusable neglect on the part ofthe party seeking relief, or the discovery of new evidence, or fraud,misrepresentation, or other misconduct by the adverse party. Hanson shouldinclude a full description of the facts supporting its claim of “good cause,”including how the mistake or other problem prevented it from responding withinthe time limits provided in the Mine Act, as part of its request to reopen. Hansonshould also submit copies of supporting documents with its request to reopen.

 

Rule 60(c) of the Federal Rules of CivilProcedure provides that a Rule 60(b) motion must be made within a reasonabletime, and for reasons of mistake, inadvertence, or excusable neglect, not morethan one year after the judgment, order, or proceeding was entered or taken. Fed.R. Civ. P. 60(c). Any motion to reopen filed by Hanson must comply with thistiming requirement. In other words, if Hanson files a motion to reopen allegingmistake, inadvertence, or excusable neglect, the motion must be filed within areasonable time and no later than one year after May 9, 2022.