1 

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. 

BUZZI UNICEM USA

: 

: 

: 

: 

: 

: 

:

Docket No. CENT 2022-0189 

A.C. No. 23-00188-556052 

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 June 24, 2023, the Commission received from Buzzi 

Unicem USA (“Buzzi”) a motion seeking to reopen a penalty assessment proceeding and relieve 

it from the Default Order entered against it. 

On October 17, 2022, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Buzzi’s perceived failure to answer the Secretary of Labor’s August 16, 

2022, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on November 17, 2022, when it appeared that the operator had not filed 

an answer within 30 days.

Buzzi requests relief in order to state its reasons for why it disagrees with alleged 

violations alleged in the Secretary’s petition. The Secretary opposes the request to reopen noting 

that the operator has failed to provide any explanation for its failure to file an answer to the 

Petition for Assessment of Penalty, respond to the Order to Show Cause and Order of Default, 

and for why it delayed responding to a delinquency letter issued by the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) on February 1, 2023. 

 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final 

decision of the Commission. 

December 13, 2023
2 

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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be 

permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Buzzi’s request and the Secretary’s response, we conclude that the 

operator has failed to provide sufficient information to determine whether good cause may exist 

to reopen the final order. We have held that a grant of relief under Rule 60(b) requires more than 

“general assertions or conclusory statements as to why an operator failed to timely contest.” 

Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 (July 2008). However, Buzzi’s motion to 

reopen provides no explanation for its failure to timely file a petition or respond to the Chief 

Judge’s Order to Show Cause and Order of Default. 

In considering whether an operator has unreasonably delayed in filing a motion to reopen, 

we also find relevant the amount of time that has passed between an operator’s receipt of a 

delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining 

Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 

2009) (holding that motions to reopen filed more than 30 days after receipt of notice of 

delinquency must explain the reasons why the operator waited to file a reopening request, and 

lack of explanation is grounds for the Commission to deny the motion). Here, the operator 

attempted to reopen the case approximately four months after MSHA sent it a delinquency letter. 

No explanation is provided for this lengthy delay. 
3

Accordingly, we deny Buzzi’s request to reopen with prejudice. See Southwest Rock 

Prod., Inc., 45 FMSHRC ___, No. WEST 2021-0275 (Aug. 30, 2023) (denying motion to reopen 

where operator provided insufficient information to determine whether good cause existed to 

reopen and operator failed to explain lengthy delay in filing motion).

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
4

Distribution:

Steve Miloscia

Safety & Health Manager

Buzzi Unicem USA, Selma Plant

1000 River Cement Road

Fetus, MO 63028

steve.miloscia@buzziunicemusa.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