Secretary of Labor v. Naselle Rock and Asphalt Company

Plain-English summary

Naselle Rock and Asphalt received two proposed penalty assessments on March 23, 2020. Its offices closed one week later as a COVID-19 safety precaution, and personnel did not return until the week the assessments became final. Naselle mailed its contest forms on April 23, one day after the statutory deadline. The Secretary did not oppose reopening but urged the company to prevent future late contests. The Commission found the short delay excusable under the unusual pandemic circumstances, reopened both assessments, and remanded them for further proceedings with a penalty petition due within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Both final assessments were reopened and remanded, with a penalty petition due within 45 days.
• Key point: A one-day contest delay caused by an office shutdown during the COVID-19 pandemic was excusable.

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.

NASELLE
ROCK AND ASPHALT

:

:

:

:

:

:

:

Docket
No. WEST 2020-0341 -M

A.C.
No. 45-01129-511209

Docket
No. WEST 2020-0342-M

A.C.
No. 45-00063-511208

COMPANY

:

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 July 6, 2020, the Commission received from Naselle
Rock and Asphalt Company (“Naselle”) two motions seeking to reopen 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 the proposed assessments were delivered on March 23, 2020, and
became final orders of the Commission on April 22, 2020. Naselle asserts that
the proposed assessments were not timely contested as a result of safety
precautions taken in response to the Covid-19 pandemic. Offices were shut down
on March 30, 2020, and personnel did not return to work until the week of April

20. The notices of contest were mailed on April 23, 2020, one day after the
    proposed assessments became final orders. 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 Naselle’s request and the Secretary’s
response, we find that the one-day delay in contesting the proposed
assessments was excusable in light of the unusual pandemic related
circumstances. 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 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:

Kim
Redding, Consultant

N-Compliance
Safety Services, Inc.

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Archith
Ramkumar

Appellate
Counsel

U.S.
Department of Labor

Office
of the Solicitor

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glenn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

[1]  For the limited purpose of
addressing these motions to reopen, we hereby consolidate docket numbers WEST
2020-0341-M and WEST 2020-0342-M involving similar procedural issues. 29 C.F.R.
§ 2700.12.