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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

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 January 26, 2023, the Commission received from 

Carmeuse Lime and Stone, Inc. (“Carmeuse”) 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). 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CARMEUSE LIME AND STONE, INC.

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Docket No. LAKE 2023-0074 

A.C. No. 12-00426-566346 

April 12, 2023
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 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on November 16, 2022, and 

became a final order of the Commission on December 16, 2022. Carmeuse asserts that it timely 

filed Notices of Contest with the Commission for three of thirteen penalties at issue.1 When 

MSHA issued the proposed assessment, Carmeuse’s Senior Area Safety and Health Manager 

was on vacation. He did not receive a paper copy of the assessment (receiving an electronic 

version instead) and, upon his return, he mistakenly failed to file a timely contest. However, 

Carmeuse diligently monitored MSHA’s website and quickly learned that the citations had 

become final orders. Carmeuse then promptly filed a motion to reopen prior to the issuance of a 

delinquency notice. 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.2

 

 Having reviewed Carmeuse’s request and the Secretary’s response, we find that the 

operator clearly expressed its intent to contest the citations by initiating contest proceedings with 

the Commission and that Carmeuse’s failure to timely file a contest with MSHA was due to 

inadvertence or mistake within the meaning of Rule 60(b)(1). Asarco LLC, 42 FMSHRC 308, 

310 (Apr. 2020). Moreover, Carmeuse diligently monitored MSHA’s website to assess the status 

1

 The Contest Proceedings are docketed as LAKE 2023-005, LAKE 2023-0008, and 

LAKE 2023-0009. 

2

 According to Carmeuse, its Senior Area Safety and Health Manager is responsible for 

reviewing and contesting all proposed penalties received at 12 of the operator’s mines. Given 

the importance of this position in the contesting process, we urge Carmeuse to ensure backup 

procedures are in place for receiving proposed penalties when the manager is unavailable. 
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of the penalties and took prompt action to file a motion to reopen after it discovered its mistake. 

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. 

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Arthur M. Wolfson, Esq.

Fisher & Phillips LLP

6 PPG Place, Suite 830

Pittsburgh, PA 15222

awolfson@fisherphillips.com

R, Henry Moore, Esq.

Fisher & Phillips LLP

6 PPG Place, Suite 830

Pittsburgh, PA 15222

hmoore@fisherphillips.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 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

Patrick W. Dennison, Esq.

Fisher & Phillips LLP

6 PPG Place, Suite 830

Pittsburgh, PA 15222

pdennison@fisherphillips.com