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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: Jordan, Chair; Rajkovich and Baker, Commissioners 

 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 3, 2022, the Commission received from Hanson 

Aggregates Pennsylvania LLC (“Hanson”) a document deemed to be 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 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

HANSON AGGREGATES 

 PENNSYLVANIA LLC

:

: 

: 

: 

: 

: 

: 

: 

Docket No. PENN 2022-0116 

A.C. No. 36-00091-552174 

April 12, 2023
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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 a proposed assessment was issued to the operator on March 29, 2022. 

The Secretary claims that Hanson did not timely contest the proposed penalties, and the penalties 

became a final order of the Commission on May 9, 2022.1 MSHA sent Hanson a delinquency 

notice on June 23, 2022. On August 3, 2022, the Commission received a notice of contest from 

Hanson, dated May 13, 2022, indicating Hanson’s contest of six of the citations listed on the 

proposed penalty assessment. The Commission deemed the document received on August 3 to 

be a request to reopen.

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 The Secretary did not state when she believes the proposed assessment was received by 

Hanson. 
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Because Hanson’s document does not explain the company’s failure to contest the 

proposed assessment on a timely basis and is not based on any of the grounds for relief set forth 

in Rule 60(b), we hereby deny the request for relief without prejudice. See Lehigh Sw. Cement 

Co., 31 FMSHRC 595 (June 2009); FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The 

words “without prejudice” mean that Hanson may submit another request to reopen the 

assessment.2

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

2 If Hanson submits another request to reopen, it must establish good cause for not 

contesting the citations within 30 days from the date it received the citation from MSHA, and 

provide information about whether it has paid the penalties for the citations it chose not to 

contest. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause” 

may be shown by a number of different factors including mistake, inadvertence, surprise, or 

excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or 

fraud, misrepresentation, or other misconduct by the adverse party. Hanson should include a full 

description of the facts supporting its claim of “good cause,” including how the mistake or other 

problem prevented it from responding within the time limits provided in the Mine Act, as part of 

its request to reopen. Hanson should also submit copies of supporting documents with its request 

to reopen.

Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion 

must be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable 

neglect, not more than one year after the judgment, order, or proceeding was entered or taken. 

Fed. R. Civ. P. 60(c). Any motion to reopen filed by Hanson must comply with this timing 

requirement. In other words, if Hanson files a motion to reopen alleging mistake, inadvertence, 

or excusable neglect, the motion must be filed within a reasonable time and no later than one 

year after May 9, 2022.
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Commissioner Althen, dissenting:

I respectfully dissent.

_________________________________ 

William I. Althen, Commissioner 
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Distribution:

Melinda Dibble 

JD Mining Safety Consultation, LLC. 

2117 Old Philadelphia Pike, Unit 401

Lancaster, PA 17602 

JDMiningSafetyConsultation@gmail.com

Timothy Poppenberg

Area Operations Manager

Hanson Aggregates Pennsylvania LLC

7660 Imperial Way

Allentown, PA 18195

Timothy.Poppenberg@lehighhanson.com

Gerald Spearing

Plant Manager

Hanson Aggregates Pennsylvania LLC

7660 Imperial Way

Allentown, PA 18195

Gerald.Spearing@lehighhanson.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
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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