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

aabrams@littler.com

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

Paige.Thomas.a@dol.gov

Melanie Garris
US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

Garris.Melanie@dol.gov

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
GVoisin@fmshrc.gov

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[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).