i 

November 2020 

TABLE OF CONTENTS 

COMMISSION ORDERS 

11-04-20 DELHUR INDUSTRIES, INC. CENT 2020-0099-M Page 857

11-04-20 CALLENDER CONSTRUCTION 

COMPANY, INC. 

LAKE 2020-0092-M Page 860 

11-04-20 BUCHANAN MINERALS, LLC VA 2020-0009 Page 863

11-04-20 COMMONWEALTH MINING, LLC VA 2020-0021 Page 866

11-04-20 FREEPORT-MCMORAN MORENCI 

INC. 

WEST 2019-0278-M Page 869

11-04-20 EIGER MOUNTAIN CRUSHING, 

L.L.C.

WEST 2019-0517-M Page 872

11-04-20 GENESIS ALKALI, LLC WEST 2020-0156-M Page 875

11-18-20 NYRSTAR TENNESSEE MINES, 

STRAWBERRY PLAINS, LLC 

SE 2020-0163-M Page 878

11-18-20 NORTH AMERICAN MILLWRIGHT 

SERVICES, INC. 

YORK 2019-0010 Page 880

11-18-20 O&G INDUSTRIES, INC. YORK 2020-0048-M Page 883

11-20-20 HUBER CARBONATES, LLC LAKE 2019-0236 Page 885
ii 

11-20-20 IMERY’S CARBONATES USA, INC. SE 2020-0140 Page 888

11-20-20 INWOOD QUARRY, INC. WEVA 2019-0221 Page 891

11-30-20 IMAGE MATERIALS CENT 2020-0017 Page 894

11-30-20 HOLCIM (US) INC. PENN 2020-0022 Page 897

11-30-20 IRON MOUNTAIN QUARRY, LLC WEST 2019-0082 Page 901

11-30-20 INDUSTRIAL PROCESS 

EQUIPMENT CONSTRUCTORS 

YORK 2018-0084 Page 904
iii 

No review was granted or denied during the month of November 2020.

COMMISSION ORDERS
42 FMSHRC Page 856
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 March 16, 2020, the Commission received from DelHur 

Industries, Inc. (“DelHur”) 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). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on December 11, 2019, and 

became a final order of the Commission on January 10, 2020. DelHur contends that it never 

received the proposed penalty assessment and was not aware of the assessment until it received 

MSHA’s delinquency notice, which was sent on February 25, 2020. Upon receipt of MSHA’s 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

DELHUR INDUSTRIES, INC. 

Docket No. CENT 2020-0099-M 

A.C. No. 45-03093-504693

42 FMSHRC Page 857
delinquency notice, DelHur contacted MSHA, which directed the operator to contact the 

Commission. DelHur then filed this motion to reopen the final penalty assessment. 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. 

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

failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or 

mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 858
Distribution: 

Eddee Smay 

DelHur Industries, Inc. 

esmay@delhur.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 859
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 February 19, 2020, the Commission received from 

Callender Construction Company, Inc. (“Callender”) 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). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on July 8, 2019, and became a 

final order of the Commission on August 7, 2019. Callender contends that it never received the 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

CALLENDER CONSTRUCTION 

 COMPANY, INC. 

Docket No. LAKE 2020-0092-M 

A.C. No. 11-00214-495359

42 FMSHRC Page 860
proposed penalty assessment. On September 23, 2019, MSHA sent a delinquency notice to 

Callender. 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. 

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

failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or 

mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 861
Distribution: 

Erik Dullea, Esq. 

Erik.Dullea@huschblackwell.com 

Ephraim Hintz, Esq. 

Ephraim.Hintz@ huschblackwell.com 

Husch Blackwell LLP 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 862
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 November 12, 2019, the Commission received from 

Buchanan Minerals, LLC (“Buchanan”) 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on August 9, 2019, and became 

a final order of the Commission on September 9, 2019. Buchanan’s Safety Manager, who is 

responsible for reviewing and processing the proposed penalty assessment form, never received 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BUCHANAN MINERALS, LLC 

 

Docket No. VA 2020-0009 

A.C. No. 44-04856-496824 

42 FMSHRC Page 863
the subject form. Under Buchanan’s normal procedures, the form is delivered to the Post Office, 

and signed for by the security guard, who would deliver the mail by placing it in corresponding 

mailboxes at the mine office. The mine superintendent, to whom the form is addressed, would 

then hand deliver it to the Safety Manager for processing, but the Safety Manager never received 

the subject proposed assessment. On October 24, 2019, MSHA sent a delinquency notice to 

Buchanan. Upon receipt of MSHA’s delinquency notice, Buchanan promptly filed a motion to 

reopen the final penalty assessment. 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. 

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

Buchanan failed to timely contest penalties through inadvertence or mistake, and that such 

inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 864
Distribution: 

Lorna M. Waddell 

F. Thomas Rubenstein 

DINSMORE & SHOHL LLP 

lorna.waddell@dinsmore.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 865
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 8, 2020, the Commission received from 

Commonwealth Mining, LLC (“Commonwealth”) 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on October 15, 2019, and 

became a final order of the Commission on November 14, 2019. Commonwealth, through its 

representative, claims that it did not receive the proposed assessment, but that it intended to 

contest the four citations included in the proposed assessment. It states that it has instituted 

procedures and provided training to avoid future occurrence. On December 30, 2019, MSHA

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

COMMONWEALTH MINING, LLC 

 

Docket No. VA 2020-0021 

A.C. No. 46-09414-501548 

42 FMSHRC Page 866
sent a delinquency notice to Commonwealth. Upon receipt of MSHA’s delinquency notice, 

Commonwealth’s representative promptly filed a motion to reopen the final penalty assessment. 

The Secretary confirms that the proposed penalty assessment was delivered to Commonwealth’s 

address of record. However, he does not oppose the request to reopen and urges the operator to 

take steps to ensure that future penalty contests are timely filed. 

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

Commonwealth failed to timely contest penalties through inadvertence or mistake, and that such 

inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 867
Distribution: 

James F. Bowman 

Jimbowman61@hotmail.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 868
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 April 17, 2019, the Commission received from FreeportMcMoRan Morenci Inc. (“Freeport”) 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on January 14, 2019, and 

became a final order of the Commission on February 13, 2019. During that time, Freeport 

alleges that it was short-staffed due to the resignation of two employees in its industrial hygiene 

program and that its Superintendent for Health & Safety, who is responsible for reviewing 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

FREEPORT-MCMORAN MORENCI INC. 

 

Docket No. WEST 2019-0278-M 

A.C. No. 02-00024-480570 

42 FMSHRC Page 869
MSHA’s proposed assessments, was also covering the tasks of the industrial hygiene program. 

Freeport believed it had followed its typical procedure, which is to forward proposed 

assessments it intends to contest to outside counsel. However, on April 4, 2019, having failed to 

timely contest or pay the assessment, MSHA sent a delinquency notice to Freeport. Upon receipt 

of MSHA’s delinquency notice, Freeport’s Superintendent promptly sent the notice to its outside 

counsel who also promptly filed a motion to reopen the final penalty assessment. 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. 

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

failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or 

mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 870
Distribution: 

Laura E. Beverage 

Jackson Kelly PLLC 

lbeverage@jacksonkelly.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 871
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 August 30, 2019, the Commission received from Eiger 

Mountain Crushing, L.L.C. (“Eiger”) 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on June 3, 2019, and became a 

final order of the Commission on July 3, 2019. Counsel for Eiger claims that the operator 

believed that it had timely contested the proposed assessment via certified mail to the correct 

MSHA address and provided documentation of the certified mail return receipt. On August 19, 

2019, MSHA sent a delinquency notice to Eiger, thereby alerting the operator that MSHA had 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

EIGER MOUNTAIN CRUSHING, L.L.C. 

 

Docket No. WEST 2019-0517-M 

A.C. No. 45-03762-492304 

42 FMSHRC Page 872
not timely received its contest. Upon receipt of MSHA’s delinquency notice, counsel for Eiger 

promptly filed a motion to reopen the final penalty assessment. 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. 

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

to timely contest penalties through inadvertence or mistake, and that such inadvertence or 

mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 873
Distribution: 

Matthew DeAtley 

DeAtley Law PLLC 

matt@deatleylaw.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 874
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 4, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 15, 2020, the Commission received from Genesis 

Alkali, LLC (“Genesis”) 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). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on November 5, 2019, and 

became a final order of the Commission on December 5, 2019. Genesis contends that due to a 

temporary change in its administrative staff, it inadvertently sent its contest of the proposed 

assessments for Citation Nos. 9348735 and 9348741, along with its payment for the remaining 

violations on the same proposed assessment, to MSHA’s St. Louis address instead of its 

Arlington office. After checking MSHA’s Data Retrieval System on December 29, 2019, 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

GENESIS ALKALI, LLC 

Docket No. WEST 2020-0156-M 

A.C. No. 48-00152-503109 

42 FMSHRC Page 875
Genesis discovered that the two citations it intended to contest were pending payment. The 

operator asserts that it notified counsel, who subsequently filed this motion to reopen. The 

Secretary confirms that Genesis submitted payment and does not oppose the request to reopen, 

but urges the operator to take steps to ensure that future penalty contests are timely filed. 

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

failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or 

mistake constitutes good cause to reopen the penalty proceeding. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 876
Distribution: 

Erik Dullea, Esq. 

Erik.Dullea@huschblackwell.com 

Ephraim Hintz, Esq. 

Ephraim.Hintz@ huschblackwell.com 

Husch Blackwell LLP 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 877
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 18, 2020 

 BEFORE: Rajkovich, Chairman; Althen and Traynor, 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”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states 

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, 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/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

NYRSTAR TENNESSEE MINES, 

 STRAWBERRY PLAINS, LLC 

Docket No. SE 2020-0163-M 

A.C. No. 40-00168-508283

42 FMSHRC Page 878
Distribution (e-mail): 

Donna Vetrano Pryor, Esq. 

Husch Blackwell LLP 

Donna.Pryor@huschblackwell.com 

Emily T. Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@dol.gov 

42 FMSHRC Page 879
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

November 18, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 May 7, 2019, the Commission received from North 

American Millwright Services, Inc. (“Millwright”) a motion seeking to reopen a penalty 

assessment proceeding and relieve it from the Default Order entered against it. 

On February 15, 2019, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Millwright’s perceived failure to answer the Petition for Assessment of 

Civil Penalty, mailed by the Secretary of Labor on December 7, 2018. By its terms, the Order to 

Show Cause was deemed a Default Order on March 4, 2019, when it appeared that the operator 

had not filed an answer within 15 days. 

The penalties became delinquent on April 4, 2019, but the operator paid the assessment in 

full on August 15, 2019. The Secretary does not oppose the request to reopen, but requests that 

Millwright, having contested the penalty at issue, take its further obligations seriously. 

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. 

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., 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

NORTH AMERICAN MILLWRIGHT 

SERVICES, INC. 

Docket No. YORK 2019-0010 

A.C. No. 18-00019-476365 N492

42 FMSHRC Page 880
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 Millwright’s request and the Secretary’s response, we find that 

Millwright’s request to reopen, filed approximately 30 days after the penalties became 

delinquent, its payment of the penalty assessment, and the Secretary’s non-opposition, 

demonstrate the operator’s good faith, and merit reopening of the case. In the interest of justice, 

we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is 

remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 881
Distribution (e-mail): 

James Russell 

CFO/COO, North American Millwright 

jrussell@namillwright.com 

Emily T. Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@dol.gov 

42 FMSHRC Page 882
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 18, 2020 

 BEFORE: Rajkovich, Chairman; Althen and Traynor, 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”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states 

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, 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/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

O&G INDUSTRIES, INC. 

Docket No. YORK 2020-0048-M 

A.C. No. 06-00295-502126

42 FMSHRC Page 883
Distribution (e-mail): 

Paul T. Balavender 

General Counsel, O&G Industries, Inc. 

Paulbalavender@ogind.com 

Emily T. Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@dol.gov 

42 FMSHRC Page 884
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 20, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2019-0236 

A.C. No. 11-02627- 487245

HUBER CARBONATES, LLC 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On April 25, 2019, the Commission received from Huber 

Carbonates, LLC (“Huber”) a motion seeking to permit late filing of its notice of contest of a 

non-assessable section 104(b) withdrawal order, 30 U.S.C. § 814(b), issued on March 14, 2019. 

The Commission has decided to construe Huber’s motion as a motion to reopen pursuant to 

section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the motion. 

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). 

The Commission has further held that “a section 104(b) withdrawal order may be 

contested under section 105(a) in a civil penalty proceeding regardless of whether it was 

separately contested under section 105(d).” UMWA v. Maple Creek Mining, Inc., 29 FMSHRC 

583, 591 (July 2007). Our Maple Creek holding is consistent with the Commission’s procedural 

42 FMSHRC Page 885
rule, which states that: “An operator’s failure to file a notice of contest of a citation or order 

issued under section 104 of the Act, 30 U.S.C. 814, shall not preclude the operator from 

challenging, in a penalty proceeding, the fact of violation or any special findings contained in a 

citation or order . . .” 29 C.F.R. § 2700.21(b). We have held that this regulation plainly permits a 

challenge to a section 104(b) withdrawal order in the civil penalty proceeding that includes the 

citation underlying the withdrawal order. Maple Creek, 29 FMSHRC at 592. 

In the instant case, although Huber has moved to essentially reopen LAKE 2019-236 to 

permit contest of section 104(b) Order No. 8672913, the record shows that the proposed 

assessment for underlying Citation No. 8672912 was properly contested and was the subject of 

Docket No. LAKE 2019-237. As Huber timely contested the penalty assessment for underlying 

Citation No. 8672912, the assessment was not a final order and reopening LAKE 2019-236 is 

unnecessary. Moreover, since the filing of this motion to reopen, the Judge assigned to the 

penalty docket has since issued a decision approving the settlement of underlying Citation No. 

8672912, as well as Order No. 8672913. 

Because Order No. 8672913 has been resolved, the motion to reopen this case is moot. 

See Olmos Contracting 1, LLC, 39 FMSHRC 2015, 2019 (Nov. 2017) (“As this matter was 

timely contested and has now been resolved, the motion to reopen this case is moot.”); Kembel 

Sand & Gravel, 33 FMSHRC 1153, 1153-54 (June 2011). Accordingly, this motion is dismissed. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 886
Distribution: 

R. Henry Moore

Arthur M. Wolfson

Patrick W. Dennison

Fisher & Phillips LLP

Six PPG Place

Pittsburgh, PA 15222

hmoore@fisherphillips.com

awolfson@fisherphillips.com

pdennison@fisherphillips.com

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

Scott.Emily.T@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 887
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 20, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. SE 2020-0140 

A.C. No. 01-00011-502106

IMERY’S CARBONATES USA, INC. 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On February 26, 2020, the Commission received from Imery’s 

Carbonates USA, Inc. (“Imery”) 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), 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). 

During an inspection spanning nine weeks from June to August 2019, Imery received 130 

citations from the Department of Labor’s Mine Safety and Health Administration (“MSHA”). 

The record indicates that the citations were divided between two proposed assessments. The first 

assessment was received by Imery on October 1, 2019, and the second was delivered on October 

21, 2019. The assessment in question became a final order of the Commission on November 21,

42 FMSHRC Page 888
2019. Imery claims that it timely submitted its contest of the citations in two packages, one sent 

on October 16, 2019, and the other on October 26, 2019. However, the operator asserts, and 

MSHA has confirmed, that the contests were inadvertently sent along with the payment of the 

uncontested citations to MSHA’s address in St. Louis, Missouri, rather than to Arlington, VA. 

Imery claims that it learned of its mistake in early January 2020 when it discovered that 

MSHA had only processed 40 of the 72 contested citations as “under contest,” and that only its 

first contest package had been forwarded to the Office of Assessments from the St. Louis office.1

 

MSHA sent a delinquency notice on January 6, 2020. Imery has not filed any other motions to 

reopen with the Commission in the last two years. 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. 

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

inadvertently mailed its contest form to MSHA’s St. Louis office along with its uncontested 

penalty payments. 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

1

 The citations that were processed as contested by MSHA have been docketed at the 

Commission under Docket Nos. SE 2020-58 and SE 2020-59. On February 11, 2020, the 

assigned Administrative Law Judge granted Imery’s unopposed Motion to Stay those 

proceedings pending the outcome of this Motion to Reopen. 

42 FMSHRC Page 889
Distribution: 

Avi Meyerstein 

Brian Hendrix 

Charles Fleischmann 

HUSCH BLACKWELL LLP 

750 17th Street, NW, Suite 900 

Washington, D.C. 20006-4675 

Avi.Meyerstein@huschblackwell.com 

Ryan Florio 

Litigation and Regulatory Counsel 

IMERYS North America 

100 Mansell Court East, Suite 300 

Roswell, Georgia 30076 

Ryan.Florio@Imerys.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

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 

42 FMSHRC Page 890
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 20, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. WEVA 2019-0221 

A.C. No. 46-02119-481551

INWOOD QUARRY, INC. 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On July 23, 2019, the Commission received from Inwood 

Quarry, Inc. (“Inwood”) a motion seeking to reopen a penalty assessment proceeding and relieve 

it from the Default Order entered against it. 

On April 2, 2019, the Chief Administrative Law Judge issued an Order to Show Cause in 

response to Inwood’s perceived failure to answer the Secretary of Labor’s February 13, 2019 

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

Default Order on April 23, 2019, when it appeared that the operator had not filed an answer 

within 20 days. 

Inwood claims that it never received the hearing packet and was told by someone at 

MSHA that the hearing paperwork was delivered to an address at “Rt. 11 South, Inwood, WV,” 

which it states is not an address for the company. MSHA’s Operator Information System and the 

company’s MSHA Legal ID Report shows Inwood’s principal office address as “Rt. 11 South.” 

The Judge’s Show Cause Order was also sent to “Rt. 11 South.” The Secretary responds that the 

Proposed Penalty Assessment was sent to P.O. Box 65, Inwood, WV 25428, which Inwood 

states is the correct address. However, we note that while the correct address appears on the 

Proposed Penalty Assessment form, the incorrect address appears in the Certificate of Service for 

the Penalty Assessment. The Secretary does not oppose the motion to reopen, but urges the 

operator to ensure that its mailing address is correctly filed with MSHA, that its responses are 

timely filed, and that Show Cause Orders are taken seriously. 

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.

42 FMSHRC Page 891
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 Inwood’s request and the Secretary’s response, in the interest of justice, 

we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is 

remanded 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 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 892
Distribution: 

D.L. Morgan, Jr.

President

Inwood Quarry, Inc.

P.O. Box 65

Inwood, WV 25428

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

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 

42 FMSHRC Page 893
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

November 30, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. CENT 2020-0017 

A.C. No. 41-04147-499677

IMAGE MATERIALS 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On March 17, 2020, the Commission received from Image 

Materials (“Image”) a motion seeking to reopen a penalty assessment proceeding and relieve it 

from the Default Order entered against it. 

On January 31, 2020, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Image’s failure to answer the Secretary of Labor’s November 25, 2019 

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

Default Order on February 21, 2020, when it appeared that the operator had not filed an answer 

within 20 days. 

Image asserts that it timely contested the Petition for Assessment of Civil Penalty and 

that its contest was lost after it was received. It states that on December 23, 2019, its contest was 

sent to the MSHA Dallas office, and again to the Arlington office on February 5, 2020. 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. 

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. 

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 

42 FMSHRC Page 894
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 Image’s request and the Secretary’s response, in the interest of justice, 

we hereby remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists to excuse Image’s failure to respond to the show cause order, and for 

further proceedings as appropriate. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 895
Distribution: 

Vaughn Proffitt, CEO 

Image Materials 

P.O. Box 1693 

Roanoke, TX 76262 

office@imagecompanies.net 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

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 

42 FMSHRC Page 896
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 30, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. PENN 2020-0022 

A.C. No. 36-00271-503052

HOLCIM (US) INC. 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On November 7, 2019, the Commission received from

Holcim (US) Inc. (“Holcim”) a motion seeking to reopen contest proceedings pursuant to section

105(a) of the Mine Act, 30 U.S.C. § 815(a) for section 104(b) Order Nos. 9464868 and 9464892,

issued on September 12, 2019, and September 30, 2019, respectively. The Commission has

decided to construe Holcim’s motion as a motion to reopen. The Secretary does not oppose.

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). 

The Commission has held that “a section 104(b) withdrawal order may be contested 

under section 105(a) in a civil penalty proceeding regardless of whether it was separately 

contested under section 105(d).” UMWA v. Maple Creek Mining, Inc., 29 FMSHRC 583, 591 

(July 2007). 

42 FMSHRC Page 897
The record shows that the proposed assessment for Citation No. 9464851, the underlying 

citation for section 104(b) Order No. 9464868, was issued on May 29, 2020, and properly 

contested in Docket No. PENN 2020-0084. On August 24, 2020, the Administrative Law Judge 

in that docket issued a decision approving settlement, which stated that Order No. 9464868 has 

been vacated by the Secretary. We conclude that the Order was properly contested along with the 

underlying citation and has been vacated. Therefore, the motion to reopen the contest of this 

Order is moot. 

With regard to Order No. 9464892, the operator first received the proposed penalty 

assessment for underlying Citation No. 9464877 on November 4, 2019, and three days later filed 

its motion to reopen on November 7, 2019. In its motion, Holcim specified that it intended to 

contest Order No. 9464892 along with the underlying citation and penalty. A recent review of 

the Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) data retrieval 

system shows, however, that Holcim has paid the proposed civil penalty for underlying Citation 

No. 9464877. To date, no civil penalties have been proposed for Order No. 9464892, and this 

Order remains unresolved. 

We conclude that this motion to reopen may serve as the operator’s timely notice of 

contest for Order No. 9464892. Therefore, because the operator timely filed its notice of contest, 

the Order is not a final order of the Commission and the motion to reopen contest of Order No. 

9464892 is denied as moot. Rock N Road Quarry, 31 FMSHRC 769, 770 (July 2009); Double 

Bonus Coal Co., 31 FMSHRC 358, 360 (Mar. 2009) (holding that statements in motions to 

reopen could serve as operator’s notice of contest, and denying the motions as moot). 

42 FMSHRC Page 898
Accordingly, we deny Holcim’s request regarding Order Nos. 9464868, as the order has 

been vacated. We also deny the operator’s request regarding Order No. 9464892, as the order has 

not become a final order of the Commission and we remand this matter to the Chief 

Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act and 

the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 899
Distribution: 

Margaret Lopez, Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart P.C. 

1909 K Street NW, Suite 1000 

Washington, DC 20006 

margaret.lopez@ogletreedeakins.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

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 

42 FMSHRC Page 900
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 30, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. WEST 2019-0082 

A.C. No. 45-03175-476571

IRON MOUNTAIN QUARRY, LLC 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On June 21, 2019, the Commission received from Iron 

Mountain Quarry, LLC (“Iron Mountain”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

On February 19, 2019, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Iron Mountain’s failure to answer the Secretary of Labor’s December 21, 

2018 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on March 7, 2019, when it appeared that the operator had not filed an 

answer within 15 days. 

The operator states that when it filed its notice of contest it provided that its counsel, Erik 

Laiho, should be contacted for all matters related to the contest. Neither the operator nor its 

counsel have any record of receiving any documents from MSHA after filing its contest. It also 

notes that it had been having problems with postal deliveries for at least a year surrounding this 

matter. The Secretary did not provide tracking information or proof that the petition was 

delivered to the operator. The Secretary does not oppose the motion to reopen. 

Iron Mountain asserts that it did not receive the Petition for Assessment of Civil Penalty. 

It states that after it did not receive any notice of further proceedings following its notice of 

contest, it reached out to the MSHA Assessment’s office and learned on May 23, 2019, that it 

was in default status. After an internal investigation, the operator could not find any record that 

the petition had been received. Additionally, Iron Mountain states that it has made multiple 

complaints to the U.S. Postal Service because of inconsistent mail delivery over the course of a 

year. There is no proof that the Petition was delivered to the operator. 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. 

42 FMSHRC Page 901
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. 

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 Iron Mountain’s request and the Secretary’s response, and the record in 

this case, we find that the Order to Show Cause did not result in a final order of default because 

it was never served on the operator. Accordingly, the operator’s motion is denied as moot, and 

this case is remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 902
Distribution: 

Erik M. Laiho 

Davis Grimm Payne & Marra 

701 Fifth Ave., Suite 4040 

Seattle, WA 98104 

elaiho@davisgrimmpayne.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

Scott.Emily.T@dol.gov 

Thomas J. O’Donnell, Jr. 

U.S. Department of Labor, MSHA 

1030 London Drive, Suite 400 

Birmingham, AL 35211 

Odonnell.Thomas@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 

42 FMSHRC Page 903
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

November 30, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket No. YORK 2018-0084

A.C. No. 30-00006-469606 E938

v. 

 Docket No. YORK 2019-0013 

INDUSTRIAL PROCESS EQUIPMENT A.C. No. 30-00006-477928 E938

 CONSTRUCTORS 

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners 

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”).1 On June 3 and 4, 2019, the Commission received from

Industrial Process Equipment Constructors (“IPEC”) motions seeking to reopen the penalty

assessment proceedings and relieve it from the Default Orders entered against it.

On February 15, 2019, the Chief Administrative Law Judge issued Orders to Show Cause 

in response to IPEC’s perceived failure to answer the Secretary of Labor’s September 6, 2018 

and December 18, 2018 Petitions for Assessment of Civil Penalty. By their terms, the Orders to 

Show Cause were deemed Default Orders on March 4, 2019, when it appeared that the operator 

had not filed answers within 15 days. 

IPEC asserts that the employee responsible for handling these matters mistakenly 

believed she had 30 days to respond to the Show Cause Orders when it filed its responses on 

March 13, 2019. During this timeframe, the employee was tending to several ill family members, 

including her mother who unfortunately passed away on February 7, 2019. The operator had also 

lost its secretary who would normally work with the employee on these matters, and who would 

have alerted her to the deadline. The Secretary does not oppose the requests to reopen, but urges 

the operator to take steps to ensure that future penalty contests are timely filed. 

The Judge’s jurisdiction in these matters 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

1

 IPEC filed similar motions to reopen relying upon the same reason as a basis for reopening in two separate dockets. For the limited purpose of addressing the motions to reopen, we 

hereby consolidate docket numbers YORK 2018-0084 and YORK 2019-0013, which involve 

similar procedural issues. See 29 C.F.R. §2700.12. 

42 FMSHRC Page 904
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 orders here have become final 

decisions of the Commission. 

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 IPEC’s requests and the Secretary’s responses, under these 

circumstances, we find that IPEC’s failure to respond to the Judge’s show cause orders due to 

family illness and the corresponding death of her mother amount to inadvertence or excusable 

neglect. See Guilmette Brothers Corp., 22 FMSHRC 803, 804 (July 2000) (granting request to 

reopen where operator’s wife was undergoing cancer surgery); Northern Kansas Rock, Inc., 22 

FMSHRC 486, 487-88 (Apr. 2000) (granting request to reopen where the operator failed to 

timely file because husband was undergoing medical treatment and surgery); Tigue Construction 

Co., 21 FMSHRC 9, 10-11 (Jan. 1999) (granting operator’s request where its vice president, who 

was the employee responsible for answering charges, unexpectedly underwent quadruple bypass 

surgery); KenAmerican Resources, Inc., 20 FMSHRC 199, 200-01 (Mar. 1998) (reopening 

proceedings where operator’s safety director, who routinely handles MSHA violations, was 

home recovering from surgery). 

 

42 FMSHRC Page 905
In the interest of justice, we hereby reopen these proceedings and vacate the Default 

Orders. Accordingly, these cases are remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 906
Distribution: 

Sharon Regan-Brown, Safety Net 

Industrial Process Equipment Constructors 

1471 Big Lake Road 

Gaylord, MI 49735 

SharonsSafetynet@gmail.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

Scott.Emily.T@dol.gov 

Norman C. Ridley, CLR 

U.S. Department of Labor, MSHA 

Thorn Hill Industrial Park 

178 Thorn Hill Road, Suite 100 

Warrendale, PA 15086 

Ridley.Norman@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 

42 FMSHRC Page 907