As an Arizona mine operator has learned, a casual regard for procedural rules in challenging administrative penalties may have undesirable consequences.
According to MSHA’s files, Gila Rock Products, LLC, a sand & gravel producer, received a proposed penalty assessment from the agency in May 2012 for citations written at its Reymert Mine. It had 30 calendar days to file an appeal with the Federal Mine Safety and Health Review Commission. When none was filed within that period, the assessment became a final order of the Commission.
In August 2013, over a year later, Gila asked the Commission to reopen the penalty assessment. The company claimed it had mailed a pre-penalty notice of contest to MSHA. It also claimed its owner was not served with the proposed assessment. The Commission said it did not receive a contest notice, as required.
In evaluating requests to reopen penalty cases, the Commission takes guidance from federal civil court rules. A mistake, inadvertence, excusable neglect or other reason showing good cause may justify reconsideration of a decision. Nonetheless, action must be taken within a reasonable time, defined in the rules as within one year after the final order is rendered. Gila did not meet that standard. As a result, the Commissioners unanimously rejected the request as untimely.
The lesson here is to know the rules and adhere to them strictly. Failing that, aggrieved parties must submit a detailed justification to the court to explain why a case should be reopened. In many instances, as occurred here, MSHA will oppose it. Employers must act promptly to protect their rights.
Facilities under OSHA’s jurisdiction also are under a specified time constraint. The filing deadline is 15 working days, and the notice goes to OSHA, not to the Occupational Safety and Health Review Commission, which adjudicates contests to OSHA enforcement actions.