Secretary of Labor v. Washington County Aggregates, Inc.

Plain-English summary

Washington County Aggregates did not contest a proposed penalty within 30 days, so the assessment became a final Commission order in September 2021. The operator said it mistakenly believed that requesting a safety and health conference with the MSHA district office began the citation-contest process. It also reported that the mine owner and administrative staff became ill with COVID-19 shortly after the assessment arrived. The Secretary did not oppose reopening but urged better procedures for future deadlines. The Commission found excusable neglect, reopened the assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: A mistaken understanding of the conference process, combined with contemporaneous COVID-19 illness, established excusable neglect in this case.

Full text (FMSHRC public release)

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.

WASHINGTON
COUNTY

AGGREGATES,
INC.

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Docket
No. CENT 2022-0012

A.C.
No. 23-02077-540128

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. (2018) (“Mine Act”). On October 12, 2021, the Commission received
from Washington County Aggregates, Inc. (“Washington County”) 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 August 16, 2021 and
became a final order of the Commission on September 15, 2021. Washington County
asserts that it mistakenly believed that its written request for a safety and
health conference with the MSHA district office started the process of
contesting citations, and that it would be notified in writing if its request
was granted or not. Furthermore, shortly after the penalty assessments were
delivered the mine owner, and subsequently certain administrative staff, came
down with Covid, preventing Washington County from timely filing a contest of
the proposed penalties. 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 Washington County’s request and the
Secretary’s response, we find that the operator acted with excusable
neglect in failing to timely file a contest of the proposed penalties. 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

Distribution:

Josh
Schultz, Esq.

Law
Office of Adele L. Abrams, P.C.

600
17 th St. #2800 South

Denver,
CO 80202

[email protected]

Emily Toler-Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

[email protected]

April Nelson, Esq.

Associate Solicitor,

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

[email protected]

Chief Administrative Law Judge Glynn Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Ave. N.W., Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

[email protected]