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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On January 12, 2023, the Commission received from 

Cascade Concrete Products Company, Inc. (“Cascade”) 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. 

CASCADE CONCRETE PRODUCTS 

 COMPANY, INC.

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Docket No. WEST 2023-0100 

A.C. No. 45-02295-563293 

August 30, 2023
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 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on September 19, 2022, and 

became a final order of the Commission on October 19, 2022. Cascade contends that it sent its 

notice of contest of three citations to MSHA’s penalty collections office in St. Louis along with 

the payment of the uncontested citations. The Secretary does not oppose the request to reopen 

but notes that notices of contest should be mailed to MSHA’s Civil Penalty Compliance Office 

in Arlington, Virginia, while payments should be sent to MSHA’s collection office in St. Louis. 

The Secretary urges the operator to take steps to ensure that future penalty contests are timely 

filed. 

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

to properly file the notice of contest was the result of inadvertent administrative error. We urge 

the operator to take steps to ensure that such errors do not recur. Nevertheless, in the interest of 

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

 

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner 

________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Melissa Hughes

Office Manager

Cascade Concrete Products Co., Inc.

P.O. Box 387 

Winthrop, WA 98862

melissa@casconcrete.com

Luke Hughes

Owner

Cascade Concrete Products Co., Inc.

P.O. Box 387 

Winthrop, WA 98862

luke@casconcrete.com

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov