February 2021
TABLE OF CONTENTS

COMMISSION ORDERS
02-22-21

SOUTHERN AGGREGATES LLC

i

CENT 2018-0403

Page 101

No Review was granted or denied during the month of February 2021

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

February 22, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2018-0403

v.

A.C. No. 16-01551-466607

SOUTHERN AGGREGATES LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2012) (“Mine Act”). On August 6, 2018, the Commission received from Southern
Aggregates LLC (“Southern 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 12, 2018, and became a

43 FMSHRC Page 101

final order of the Commission on July 12, 2018. The operator had failed to timely contest the
proposed assessment, apparently due to its mistaken belief that there was a pending informal
conference with MSHA that stayed its obligation to do so. Upon discovering its error during an
internal review, the operator engaged with its legal counsel and submitted the Notice of Contest
on July 18, 2018, only six days after the final order date. See Operator Ex. F. Furthermore, an
affidavit from the mine’s safety representative states that the operator has since “created” a
“procedure . . . to ensure that citations which Southern Aggregates intends to challenge are
contested within 30 days of receipt of the Proposed Assessment, even any citations which are
subject to a pending informal conference.” See Operator Ex. A.
The Secretary does not dispute any of these facts in opposing the operator’s motion to
reopen, but argues that the operator “fails to satisfy [the] . . . requirements . . . for obtaining
reopening,” which involve providing an account of the “relevant dates,” a “clear explanation” for
its failure to timely contest the penalty, the submission of supporting “affidavits,” and the like.
See Sec’y Opp Br. It is clear, however, that Southern Aggregates has met these requirements.
Having reviewed Southern Aggregates’ request and the Secretary’s response, we find that
the operator made a mistake when it assumed the proposed assessment would not be processed
during what it mistakenly believed was an ongoing informal conference process. 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/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 102

Distribution (e-mail):
Nicholas W. Scala, Esq.,
Conn Maciel Carey PLLC,
5335 Wisconsin Ave. NW, Suite 660
Washington, DC 20015
nscala@connmaciel.com
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 103