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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 June 23, 2023, the Commission received from United 

Taconite, LLC (“United”), 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. 

UNITED TACONITE, LLC,

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: 

: 

: 

: 

: 

:

Docket No. LAKE 2023-0205 

A.C. No. 21-03404-570153 

January 9, 2024
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Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered to the operator on January 24, 

2023. On February 23, 2023, the assessment became a final order of the Commission. 

United Taconite argues that staffing changes caused its failure to timely file a contest of 

twenty civil penalties listed on the proposed assessment. It explains that its Senior Safety 

Specialist, who makes the decisions about which citations and penalties to contest, was working 

in another department at the time of the issuance of the proposed assessment. In addition, the 

operator’s safety manager, who managed the proposed assessment forms, was permanently 

transferred to another department on February 16, 2023, and a new health and safety specialist 

was hired on January 20, 2023. United Taconite states that when its safety manager departed on 

February 16, he handed mail, which included the proposed assessment, to the new safety 

specialist without providing any instructions. No action was taken on the proposed assessment. 

After the Senior Safety Specialist returned to the safety department, he received a delinquency 

notice and contacted outside counsel.1 On April 24, 2023, he trained the newly hired safety 

specialist on procedures for handling MSHA assessments. United Taconite explains that any 

further delay after receiving the delinquency notice was the result of counsel’s investigation, 

preparation of the motion to reopen, and counsel’s litigation schedule. Mot. at 6.

The Secretary opposes the operator’s motion to reopen. The Secretary states that on 

March 15, 2023, MSHA received partial payment for three citations. On April 10, 2023, MSHA 

sent United Taconite a delinquency notice. On May 1, 2023, MSHA received another partial 

payment for 9 of the 59 citations. On June 2, 2023, MSHA issued United Taconite a demand 

letter stating that the operator must pay a total of $70,737 within 30 days or MSHA would take 

additional enforcement action. On July 14, 2023, MSHA issued a citation alleging that United 

Taconite had violated the Mine Act through its failure to pay. 

In opposing United Taconite’s motion, the Secretary argues that the operator’s 

explanation that no action had been taken on the proposed assessment because there were 

personnel changes and that the newly hired safety specialist did not know the payment or contest 

process “boils down to inadequate procedures for responding to proposed penalties.” Sec’y 

Response at 7. The Secretary asserts that the operator should have been more careful with the 

filing of the contests in this case given the large penalties proposed. She submits that although 

the new safety specialist was later trained, it did not address the inadequate procedures in this 

case. The Secretary contends that United Taconite filed its motion to reopen over 2 months after 

MSHA sent it a delinquency letter.

1 We note that our dissenting colleague states that when the Senior Safety Specialist 

received the notice of delinquency, he immediately returned the penalty assessment noting 20 

citations the operator wished to contest. Slip op. at 4. Although the proposed penalty 

assessment form is signed and dated April 20, 2023, there are no allegations in the record that the 

operator returned the contest form to MSHA on or near that date. Rather, the contest form 

appears in the record as an attachment to the operator’s June 23 motion to reopen. See, e.g., Ex. 

C 001 (affidavit of senior safety specialist stating that once he became aware of the delinquency 

notice, he contacted the outside counsel’s paralegal who informed him that it would be necessary 

to file a motion to reopen).
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The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). United Taconite did not provide the 

employee with training on proposed assessments, or otherwise remedy the confusion resulting 

from the staffing changes, for over two months. This amounts to an inadequate or unreliable 

internal processing system.

In addition, United Taconite failed to file the motion to reopen within a reasonable time. 

The Commission has previously held that “[m]otions to reopen received within 30 days of an 

operator’s receipt of its first notice from MSHA that it has failed to timely file a notice of contest 

will be presumptively considered as having been filed within a reasonable amount of time.” 

Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). The operator’s June 23 motion 

to reopen was filed months after it received the April 11 delinquency letter and weeks after 

MSHA sent the operator a demand letter.

We find that United Taconite has not asserted good cause for its failure to timely contest 

the proposed penalties. See Moose Lake Aggregates, LLC, 34 FMSHRC 1, 2-3 (Jan. 2012) 

(denying a motion to reopen when the operator had deficient internal procedures and failed to 

file motion within a reasonable time). The motion is denied with prejudice. 

_________________________________

Mary Lu Jordan, Chair

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

________________________________ 

Timothy J. Baker, Commissioner 
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Commissioner Althen, dissenting:

I respectfully dissent.

This motion to reopen involves an attempt by United Taconite to challenge 20 citations 

totaling nearly $70,000 in proposed penalties. 

The facts are not contested. A United Taconite Safety Specialist oversaw dealing with 

assessments. When he temporarily left his department in June 2022, a safety manager took over 

processing citations. However, that safety manager left that position virtually simultaneously 

with the receipt of the subject assessments. A new person replaced him but did not know the 

contents of the envelopes left behind. 

In March, the Safety Specialist who had been on temporary reassignment returned and 

went over outstanding issues with the new Safety Specialist who had been unaware of the 

citations. At that point, the assessments were discovered. 

When the Senior Safety Specialist found the notice of delinquency, he immediately 

returned the penalty assessment noting 20 challenged citations demonstrating its desire to contest 

those citations. United Taconite also responsibly turned the filing of a formal motion over to 

outside counsel. A paralegal for outside counsel affirmed via affidavit that United Taconite 

contacted her on April 21, 2023, regarding the delinquency notice that had been mailed by the 

Secretary on April 10, 2023. Writing with great integrity, the law firm acknowledges in the 

motion it filed that:

Any further delay beyond the initial discovery of the delinquent Assessment [midApril] upon receipt of the delinquency notice make April 3, was the result of 

counsel for United Taconite’s investigation of this matter, preparation of the 

Motion to Reopen and related documents, and counsel’s additional litigation 

schedule.

Mot. to Reopen at 6 (June 8, 2023).

United Taconite proved that it recognized its error and acted to correct it virtually 

immediately upon receiving first notice of delinquency. Within the last few days, the 

Commission reaffirmed a long-established position regarding timely recognition of an error. 

The Commission has held that quick action after recognizing an error militates in 

favor of reopening. “Motions to reopen received within 30 days of an operator’s of 

its first notice from MSHA that it has failed to timely file a notice of contest will be 

presumptively considered as having been filed within a reasonable amount of time.” 

Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009).

Heidelberg Materials, US Cement, LLC v. Sec’y, 45 FMSHRC ___ (Dec. 6, 2023).
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Undoubtedly, United Taconite’s immediate action upon receipt of receiving notice of the 

error compels a finding of good faith. If the operator had typed a note asking to reopen with the 

submission, it unquestionably would be presumptively considered to have filed its motion within 

a reasonable time. Ignoring the operator’s quick action, the majority uses a technicality that 

United Taconite did not file a “motion” to reopen but instead, acting reasonably, turned to its 

outside counsel. 

The majority finds a reason to find a default of 20 citations comprising a very large 

penalty amount because United Taconite turned to its attorneys and the attorneys took two 

months to file the formal motion. The Secretary does not assert any prejudice because of the 

delay in filing a formal motion challenging the citations that the operator quickly contested upon 

receiving a notice of delinquency. Cf. Long Branch Energy, 34 FMSHRC 1984, 1991 (showing 

leniency to the Solicitor for failing to file timely during a period of increased litigation when 

actual prejudice could not be shown). Under these circumstances, United Taconite provided 

timely notice of its desire to challenge and an explanation of reasons for its failure to file within 

30 days of receipt of the citations. 

Apparently recognizing that United Taconite acted with promptness to notify MSHA and 

the Commission of its desire to contest citations, the majority also finds that United Taconite had 

an unreliable internal processing system. That allegation is false. 

These facts do not show an unreliable system. They show a sui generis situation in which 

turnover of staff simultaneously with the temporary absence of a Safety Specialist led to a brief 

delay in recognizing and dealing with the assessments. With the Safety Specialist’s return and 

within 30 days of first notice, United Taconite served notice of its desire to contest the 20 

citations. In short, a reliable internal system was temporarily disrupted by the simultaneous 

absence of the prior safety manager and the temporarily reassigned Safety Specialist. 

This case does not reflect poor internal processing or lack of expedition by United 

Taconite. It is a singular event caused by staff turnover. Yet, the majority reviews United 

Taconite’s quick action and finds no difficulty in refusing it the opportunity to contest penalties 

totaling a very high amount.

The majority’s opening paragraph purports to recognize that default is a harsh remedy. 

Institutions are known for the actions they take not the high-sounding words they write. The 

majority’s decision belies their words. 

_________________________________ 

William I. Althen, Commissioner 
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Distribution:

Patrick W. Dennison, Esq.

Fisher & Phillips LLP

6 PPG Place

Suite 830

Pittsburgh, PA 15222

pdennison@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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov