Secretary of Labor v. NR Hamm Quarry Inc.

Plain-English summary

NR Hamm Quarry timely filed citation contests but its accounting office later paid the related proposed penalties without review by the safety department. Counsel discovered the payments only when the Commission announced plans to dismiss the pending contest cases, and the operator promptly sought relief. The Secretary did not oppose. The majority found that internal miscommunication caused a mistake, reopened both assessments, and remanded them for penalty proceedings. Commissioner Marvit dissented because he believes the Commission lacks authority to reopen section 105(a) final orders.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Two paid penalty assessments were reopened and remanded, over one Commissioner's dissent.
• Key point: Timely citation contests showed a clear intent to litigate and supported relief from later payments caused by departmental miscommunication.

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.

NR
HAMM QUARRY INC.

Docket
No. CENT 2025-0082

A.C.
No. 23-01889-590067

Docket
No. CENT 2025-0083

A.C.
No. 23-01889-591741

BEFORE: 
Jordan,
Chair; Baker, and Marvit, Commissioners

ORDER

BY: Jordan, Chair; and
Baker, Commissioner

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On November 22, 2024, the Commission received
from NR Hamm Quarry Inc. (“NR Hamm”) a motion seeking to reopen two penalty
assessments, 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 assessment in CENT 2025-0082 was delivered on December
12, 2023, and that the case was closed by MSHA due to the operator’s payment of
the penalties on January 7, 2024. MSHA’s records further indicate that the
proposed assessment in CENT 2025-0083 was delivered on January 4, 2024, and
that the case was closed by MSHA due to the operator’s payment of the penalties
on February 8, 2024. NR Hamm asserts that it inadvertently paid the penalties for
all citations due to an “administrative error.” It claims that, due to the
relatively low penalty amount involved in these citations, it simply paid the penalties
through administrative channels rather than having them reviewed by the safety
department, and its accounting office was therefore unaware that four notices
of contest for the citations were filed in 2023. [2]
Counsel for NR Hamm learned of the payment only when the Commission issued its
notice of intent to dismiss the contest proceedings on November 20, 2024. As
such, the operator seeks reopening in these cases. The Secretary of
Labor does not oppose the motion to reopen, but reminds NR Hamm to ensure that
future contests are timely filed.

Having reviewed NR Hamm’s request and the
Secretary’s response, we find that the operator has demonstrated that its
failure to timely file a contest of the proposed penalty was the result of a
mistake due to a miscommunication between the operator’s administrative and
safety departments. We note that the operator clearly indicated its intent to
contest by filing a timely notice of contests for the citations. See
Carmeuse Lime & Stone, Inc. , 45 FMSHRC 179, 180 (Apr. 2023) (crediting
the operator for initiating contest proceedings as indicia of intent to
contest). Moreover, NR Hamm promptly filed a motion to reopen upon learning of
its mistake. See Highland Mining Co. , 31 FMSHRC 1313, 1316-17
(“[m]otions to reopen received within 30 days of an operator’s receipt of its
first notice from MSHA that it has failed to timely file a notice of contest
will be presumptively considered as having been filed within a reasonable
amount of time”).

In the interest of justice, we 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. 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/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, dissenting:

I write to disagree with the Majority in
this case for the reasons set forth below.

In Explosive Contractors , 46 FMSHRC
965 (Dec. 2024), I dissented and explained that Congress did not grant the
Commission the authority to reopen final orders under section 105(a) of the
Mine Act. The Commission’s repeated invocation of Federal Rule of Civil
Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech , I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975 (citing Hancock Materials,
Inc. , 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for
the proposition that the Commission may not reopen final orders under its
statutory grant, but an operator may proceed if it has not properly received a
proposed order.

In the instant
case, as the Majority recounts, the Commission’s order became final under the
language of section 105(a). The Majority, however, votes to reopen the case. The
Mine Act has not granted us authority to reconsider final orders of the
Commission as I set out more fully in Explosive Contractors . To the
contrary, it has limited our authority to do so. Therefore, I respectfully
dissent and would deny reopening.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Adele
L. Abrams, Esq., CMSP

Littler
Mendelson PC

815
Connecticut Ave NW, Suite 400

Washington,
DC 20006

[email protected]

Thomas
A. Paige, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite
N4428  

Washington,
DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine
Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] The Commission
hereby consolidates these above-captioned matters pursuant to Commission
Procedural Rule 12 because they are “proceedings that involve similar issues.”

29
C.F.R. § 2700.12.

[2] Commissioner
Baker has previously stated that it is his position that the accidental payment
of a civil penalty does not constitute excusable neglect. See, e.g., Omya,
Inc. , 45 FMSHRC 131 (Mar. 2023). However, in light of the fact that the
operator filed a timely contest to the underlying citation, Commissioner Baker
would determine that in the instant case payment was not the result of an
inadequate or unreliable internal processing system. See Greenbrier Mineral,
LLC , 45 FMSHRC 822, 823 n.1 (Sep. 2023).