Secretary of Labor v. Hanson Aggregates Pennsylvania, LLC (Commission decision, May 16, 2023)

Plain-English summary

Hanson Aggregates filed its proposed-assessment contest one day late while several senior roles were changing or temporarily uncovered. The operations manager had transferred, a new safety manager was being hired, and the plant manager was temporarily absent. The assessment was briefly overlooked during those disruptions. The Secretary did not oppose reopening but urged the operator to prevent future delays. The Commission found excusable neglect caused by unusual staffing disruption, 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: A one-day delay during documented, unusual management turnover supported reopening.

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.

HANSON
AGGREGATES

PENNSYLVANIA,
LLC

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Docket
No. PENN 2022-0124

A.C.
No. 36-00029-556370

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 August 26, 2022, the Commission received from Hanson Aggregates Pennsylvania, LLC (“Hanson 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 24, 2022, and became a final order of the Commission on July 25, 2022. Hanson Aggregates claims it was dealing with various high-level staff disruptions at the time, including the transfer of the operations manager, the hiring of a new safety manager, and the temporary absence of the plant manager. As a result, the proposed assessment was briefly overlooked and the notice of contest was filed one day late, on July 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.

Having
reviewed Hanson Aggregate’s request and the
Secretary’s response, we find that the brief delay in filing the notice of contest was the result of excusable neglect arising from unusual levels of staff disruption. 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:

Margaret S. Lopez,
Esq.

Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.

One PPG Place, Suite
1900

Pittsburgh, PA
15222

[email protected]

Philip
K. Kontul, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart P.C.

One
PPG Place, Suite 1900

Pittsburgh
PA 15222

[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

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]