**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.

 

HANSON  AGGREGATES 

PENNSYLVANIA,  LLC                                        | :

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Docket  No. PENN 2022-0124

A.C.  No. 36-00029-556370

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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 26, 2022, the Commission receivedfrom Hanson Aggregates Pennsylvania, LLC (“Hanson Aggregates”) 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 24, 2022, andbecame a final order of the Commission on July 25, 2022. Hanson Aggregates claimsit was dealing with various high-level staff disruptions at the time, includingthe transfer of the operations manager, the hiring of a new safety manager, andthe temporary absence of the plant manager. As a result, the proposedassessment was briefly overlooked and the notice of contest was filed one daylate, on July 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.

 

            Havingreviewed Hanson Aggregate’s request and theSecretary’s response, we find that the brief delay in filing the noticeof contest was the result of excusable neglect arising from unusual levels ofstaff disruption. 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:

Margaret S. Lopez,Esq.

Ogletree, Deakins,Nash, Smoak & Stewart, P.C.

One PPG Place, Suite1900

Pittsburgh, PA15222

Margaret.lopez@ogletree.com

 

PhilipK. Kontul, Esq.

Ogletree,Deakins, Nash, Smoak & Stewart P.C.

OnePPG Place, Suite 1900

PittsburghPA 15222

Philip.kontul@ogletree.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