Secretary of Labor v. Hanson Aggregates Pennsylvania, LLC

Plain-English summary

Hanson Aggregates sent the Commission a notice contesting six citations after the assessment had become final and MSHA had issued a delinquency notice. The Commission treated the filing as a motion to reopen. Hanson did not explain why it missed the statutory contest deadline or identify a Rule 60(b) ground for relief. The Commission denied reopening without prejudice, with Commissioner Althen dissenting. Hanson could file another request supported by a full good-cause explanation, relevant documents, payment information, and compliance with Rule 60's timing limits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Reopening was denied without prejudice, allowing Hanson to submit a properly supported request.
• Key point: A late contest alone is insufficient; a reopening request must explain the missed deadline and establish a recognized ground for relief.

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.

HANSON
AGGREGATES

PENNSYLVANIA
LLC

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Docket
No. PENN 2022-0116

A.C.
No. 36-00091-552174

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

[email protected]

Timothy
Poppenberg

Area
Operations Manager

Hanson Aggregates Pennsylvania LLC

7660
Imperial Way

Allentown,
PA 18195

[email protected]

Gerald
Spearing

Plant
Manager

Hanson
Aggregates Pennsylvania LLC

7660
Imperial Way

Allentown,
PA 18195

[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]

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

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[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.