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)

GEORGETOWN SAND & GRAVEL,

INC.

Docket No. PENN 2024-0020

A.C. No. 36-05205-585212

BEFORE: Jordan, Chair; Baker, and Marvit, 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 November 21, 2023, the Commission received from Georgetown Sand & Gravel, Inc. (“Georgetown Sand”) 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 to the Post Office where the operator receives mail on September 29, 2023, and became a final order of the Commission on October 30, 2023.[1]

On November 21, 2023, the Commission received a pro se motion to reopen the final order. Georgetown Sand filed the motion after MSHA rejected its November 6, 2023 attempt to contest the assessment because the contest form was filed beyond the 30-day deadline. In the motion to reopen, Georgetown’s president asserts that the form was filed late due to both an “oversight on the timing” and “breakdown of communication between my office manager and myself.” Mot. at 1-2. The motion represents that “this is the first time we have ever been late on a request.” Mot. at 1.

The Secretary opposes the operator’s request, contending that the cited reasons are too vague to constitute good cause for a failure to timely file. Under Commission case law, the operator bears the burden of showing that it is entitled to relief. An operator is required to provide all known details, including relevant dates and persons involved, and must provide a clear explanation that accounts for the operator’s failure to timely contest the assessment. Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010). Motions that lack a factual accounting of the operator’s failure to timely file are deficient. See, e.g., Potter South East, LLC, 45 FMSHRC 152, 153-54 (Mar. 2023).

In addition, the Secretary contends that the operator’s filing of multiple motions to reopen in a short period of time demonstrates that it has an inadequate or unreliable internal processing system; the motion to reopen this captioned proceeding was received by the Commission only 18-days after a prior request to reopen a separate final order (Docket No. PENN 2024-0008). The Secretary notes that the operator had previously been placed on notice that greater efforts were required, attaching a June 2023 letter informing Georgetown Sand that it had almost $20,000 in unpaid penalties. Sec’y Response Attachment D. Also attached to the Secretary’s response are multiple default orders issued after Georgetown Sand failed to file answers with the Commission. Sec’y Response Attachment E (Docket Nos. PENN 2022-0134 and PENN 2022-0135). The Secretary maintains that Georgetown’s “history of non-compliance signifies a lack of good faith.” Sec’y Response at 10.

The Commission has long held that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. [2] See, e.g., Pinnacle Mining Co. LLC, 30 FMSHRC 1066, 1067 (Dec. 2008) (denying motion to reopen where an operator condoned a mail delivery system which predictably resulted in missed deadlines).

Upon consideration of Georgetown Sand’s motion and the Secretary’s response, we conclude that the operator has not demonstrated that its failure to timely contest was the result of a mistake or inadvertence, but instead we conclude that it was the predictable result of an unreliable or inadequate internal processing system. Accordingly, the motion to reopen is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, concurring:

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

In Explosive Contractors, 46 FMSHRC __, No. CENT 2024-0122 (Dec. 4, 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.” Belt Tech, Inc., 46 FMSHRC __, slip op. at 3, No. WEVA 2024-0036 (Dec. 5, 2024) (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 operator received the final order. The Majority denies reopening in its opinion because the operator has not alleged good cause or provided a factual accounting for its failure to timely contest the penalties. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority in denying reopening in this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

David M. Bryan, President

Georgetown Sand & Gravel Inc.

Box 127

Georgetown, PA 15043

Davidbryan@bryanmaterialsgroup.com

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

Nelson.April@dol.gov

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

scott.emily.t@dol.gov

Melanie Garris
USDOL/MSHA, OAASEI/CPCO
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

[1] Georgetown Sand asserts that it received the Secretary’s proposed assessment on October 4, 2023, and that the assessment became a final order 30-days later on November 4, 2023. Neither party provided documentary evidence demonstrating delivery, however, the date of receipt is not dispositive in these circumstances. Here, it is undisputed that the assessment became a final order before Georgetown Sand attempted to file the contest form on November 6, 2023.

[2] The operator’s assertion that this case represents “the first time we have ever been late on a request” does not accord with the facts, considering that the Commission received a motion to reopen a separate proceeding only 18-days prior to its filing of a motion to reopen the captioned case.