Secretary of Labor v. Highway Materials, Inc.

Plain-English summary

Highway Materials requested an MSHA conference on three citations and later received a proposed penalty assessment while waiting for the conference results. The operator mistakenly believed it had 30 days after the results letter to contest the penalties, rather than 30 days after receiving the assessment. It also sent its late contest to the Commission instead of MSHA. The Secretary did not oppose reopening. The Commission found that the operator had diligently contacted MSHA, promptly sought relief after learning of the error, and documented its good-faith efforts, so it reopened the assessment and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: An operator must contest a proposed penalty with MSHA within 30 days after receiving the assessment, not after receiving conference results.

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.

HIGHWAY
MATERIALS, INC.

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Docket
No. PENN 2023-0003

A.C.
No. 36-00128-556080

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 October 6, 2022, the Commission received
from Highway Materials, Inc. (“Highway Materials”) 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 3, 2022, and became
a final order of the Commission on July 5, 2022.

Highway Materials alleges that on December
8, 2021, its Safety Coordinator “contested” Citation Nos. 9660855, 9660858, and
9660854 by requesting a conference with an MSHA Conference Litigation
Representative (“CLR”). The conference took place on March 3, 2022, and the CLR
informed the operator that he would subsequently inform the operator of his
findings regarding the citations. The operator subsequently received a proposed
assessment dated June 1, 2022, proposing civil penalties for the three
citations. On June 9, 2022, Highway Materials contacted MSHA about the
conference results. The operator did not receive a response from MSHA until
August 17, 2022. On August 17, Material Highways received a “conference results
letter” indicating that the citations should remain as issued. On August 18,
MSHA mailed a delinquency notice to Highway Materials.

The operator states that it believed that
it had 30 days from the date of the conference results letter to submit a
contest of the proposed penalties, and filed a contest on September 8, 2022,
with the Commission. After MSHA eventually received a copy of Highway
Material’s contest, it informed the operator by email dated September 21, 2022,
that the contest was untimely.

Contrary to Highway Material’s belief, a
contest of proposed penalties must be filed with MSHA, rather than the
Commission, within 30 days of the operator’s receipt of the proposed penalty
assessment, rather than receipt of the conference results letter. [1]
30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. 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 in accordance with MSHA’s regulations at 30
C.F.R. § 100.7 and the Commission’s procedural rules.

Having
reviewed Highway Material’s request and the
Secretary’s response, we find there is sufficient evidence that mistakes
were made, thus satisfying the Rule 60(b) criteria. See Keystone Cement Co. ,
32 FMSHRC 1040 (Sept. 2010); Hanson Aggregates Midwest, LLC , 31 FMSHRC
1292 (Nov. 2009); South Ridge Granite Quarry , 31 FMSHRC 873 (Aug. 2009).
We find that Highway Materials acted diligently in attempting to discern the
status of the penalties and promptly in filing its motion to reopen upon
discovery of its error. The operator’s good faith is demonstrated by its extensively
documented contacts with MSHA and the Secretary’s non-opposition. 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:

Brian
N. Sheehy

Safety
Manager

Highway
Materials, Inc.

409
Stenton Avenue

Flourtown,
PA 19031

[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

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1]
As the
Secretary noted in her response, notices of contests of proposed penalties
should be mailed to MSHA’s Civil Penalty Compliance Office, 201 12th Street
South, Suite 401, Arlington, VA 22202.