Secretary of Labor v. Harrison Sand & Gravel Co., Inc.

Plain-English summary

Harrison Sand & Gravel received two proposed penalty assessments and timely prepared notices contesting part of each assessment. It mistakenly mailed both contest notices with the partial payments to MSHA's payment address instead of sending the notices to the separate contest address. The Secretary did not oppose reopening but urged the operator to prevent future filing failures. The Commission found excusable neglect, reopened both consolidated matters, and remanded for the Secretary to file penalty petitions within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both final assessments were reopened and remanded for further penalty proceedings.
• Key point: Timely contest notices mistakenly sent to MSHA's payment address supported relief from the final assessments.

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.

HARRISON SAND
& GRAVEL CO., INC.                                                 

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Docket
No. LAKE 2022-0069

A.C.
No. 12-02049-542961

Docket
No. LAKE 2022-0070

A.C.
No. 12-01151-542959

BEFORE:  
Traynor, Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE COMMISSION:

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On January 14, 2022, the Commission received
from Harrison Sand & Gravel Co., Inc. (“Harrison”) two motions seeking to
reopen two penalty assessments that had become final orders of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

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 both proposed assessments were delivered on October 7, 2021, and
became final orders of the Commission on November 8, 2021. Harrison asserts
that, on approximately October 19, 2021, it mistakenly sent both its notices of
contest and partial penalty payments to the address for the payment of
penalties, instead of correctly mailing the notices of contest to a separate address,
as required by MSHA. The Secretary does not oppose the requests to reopen, but
urges the operator to take steps to ensure that future penalty contests are
timely filed.

Having
reviewed Harrison’s requests and the Secretary’s responses, we find
that the operator acted with excusable neglect by inadvertently mailing the
notices of contest to the wrong address, despite doing so in a timely manner. In the interest of justice, we hereby reopen these
matters and remand them 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 petitions for assessment of penalties 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 (by e-mail):

Kenneth Wanstrath,
President

Harrison Sand
& Gravel Co., Inc.

992 South County
Road 800 East

Greensburg, IN
472408854

[email protected]

Emily Toler Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

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

[email protected]

Melanie Garris,
Chief

Office of Civil
Penalty Compliance

U.S. Department of
Labor, Office of Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington, DC
20004-1710

[email protected]

[1] For the limited
purpose of addressing these motions to reopen, we hereby consolidate docket
numbers LAKE 2022-0069 and LAKE 2022-0070 because they involve similar factual
and procedural issues. 29 C.F.R. § 2700.12.