Secretary of Labor v. Brookfield Sand & Gravel, Inc. (Commission decision, August 7, 2017)

Plain-English summary

Brookfield received a proposed penalty assessment on November 16, 2015, and mailed its contest on December 16, 2015. MSHA treated the assessment as final, leading Brookfield to ask the Commission to reopen it. The Commission held that the contest was timely because the 30-day computation excludes the day that triggers the response period. It concluded that the assessment never became a final Commission order, treated the reopening motion as moot, and remanded for ordinary proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The contest was held timely, the reopening motion was moot, and the case was remanded.
• Key point: The day an assessment is received is excluded when calculating the Mine Act's 30-day contest period.

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.

BROOKFIELD
SAND & GRAVEL, INC.

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:

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Docket
No. LAKE 2016-253-M

A.C.
No. 12-02240-396032

BEFORE:  Althen,
Acting Chairman; Jordan, Young, and Cohen, 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 April 8, 2016, the Commission received from Brookfield Sand and Gravel, Inc. (“Brookfield”) a motion seeking to reopen a penalty assessment that the Secretary asserted had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On
November 16, 2015, Brookfield received a proposed penalty assessment from the Secretary. Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate the operator mailed its contest on December 16, 2015.          This was a timely response. See 30 U.S.C. § 815(a) (operator has 30 days within which to notify Secretary it intends to contest citation or penalty); (29 C.F.R. § 2700.8 (Computation of 30 days excludes day from which obligation to respond begins to run). [1] We therefore conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested it.

Accordingly,
the operator’s motion to reopen is moot, and this case is remanded 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.

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Charlene
Devalal

Brookfield
Sand & Gravel, Inc.

8587
N. 850 West

Fairland,
IN 46126

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1]
Computation would be the same under the Federal Rules of Civil Procedure. See FRCP 6(a)(1)(A) (Computation excludes day of the event that triggers the period).