Secretary of Labor v. Southern Aggregates, LLC

Plain-English summary

Southern Aggregates missed a penalty-contest deadline because it mistakenly believed a pending informal conference stayed the deadline. The operator discovered the error during an internal review and submitted its contest six days after the assessment became final. It also adopted a procedure requiring timely contests even when an informal conference is pending. Although the Secretary opposed reopening, the Commission found that Southern Aggregates had adequately documented the mistake. It reopened the final assessment and remanded the matter for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: A prompt contest and corrective procedure supported reopening after a mistaken belief about an informal conference.

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.

SOUTHERN
AGGREGATES LLC   

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Docket No. CENT 2018-0403

A.C.
No. 16-01551-466607

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 August 6, 2018, the Commission received
from Southern
Aggregates LLC
(“ Southern
Aggregates ”)
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 12, 2018, and
became a final order of the Commission on July 12, 2018. The operator had failed
to timely contest the proposed assessment, apparently due to its mistaken
belief that there was a pending informal conference with MSHA that stayed its
obligation to do so. Upon discovering its error during an internal review, the
operator engaged with its legal counsel and submitted the Notice of Contest on
July 18, 2018, only six days after the final order date. See Operator
Ex. F. Furthermore, an affidavit from the mine’s safety representative states
that the operator has since “created” a “procedure . . . to ensure that
citations which Southern Aggregates intends to challenge are contested within
30 days of receipt of the Proposed Assessment, even any citations which are
subject to a pending informal conference.” See Operator Ex. A.

The Secretary does not dispute any of
these facts in opposing the operator’s motion to reopen, but argues that the
operator “fails to satisfy [the] . . . requirements . . . for obtaining
reopening,” which involve providing an account of the “relevant dates,” a
“clear explanation” for its failure to timely contest the penalty, the
submission of supporting “affidavits,” and the like. See Sec’y Opp Br. It
is clear, however, that Southern Aggregates has met these
requirements.

Having reviewed Southern Aggregates’ request and the
Secretary’s response, we
find that the operator made a mistake when it assumed the proposed assessment
would not be processed during what it mistakenly believed was an ongoing informal
conference process. 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 (e-mail):

Nicholas W.
Scala, Esq.,

Conn Maciel
Carey PLLC,

5335 Wisconsin
Ave. NW, Suite 660

Washington, DC
20015

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

Division
of Mine Safety and Health

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, 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 Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]