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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 case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act”). On May 17, 2023, the Commission received from Heidelberg 

Materials US Cement LLC (“Heidelberg”) a motion to reopen a final order of the Commission 

pursuant to section 105(a) of the 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. 

HEIDELBERG MATERIALS US

 CEMENT LLC, 

:

: 

: 

: 

: 

: 

: 

:

Docket No. CENT 2023-0192 

A.C. No. 13-00095-572679 

December 6, 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 to the operator on March 13, 

2023. On March 19, 2023, Heidelberg timely contested five of the 38 proposed penalties 

contained in the assessment. The remaining 33 uncontested penalties therefore became final 

orders of the Commission 30 days later (April 12, 2023). On May 10, 2023, the Secretary of 

Labor filed a penalty petition for the five contested citations. 

On May 17, 2023, the operator filed a motion to reopen three of the originally

uncontested penalties.1

 Heidelberg alleges that it intended to contest those three citations, but 

failed to as a result of a mistake. As specified in an attached affidivt, the operator’s Safety 

Manager states that she omitted the fourth page of the assessment when scanning the documents, 

which led to her failure to contest citations listed on that page when transmitting the contest form 

to MSHA. The Secretary opposes the operator’s motion, alleging that Heidelberg does not 

provide a sufficent explanation of the mistake. 

We find that the operator has established that it was acting in good faith. It timely filed a 

contest form, albeit incomplete, and then promptly filed the subject motion after receiving the 

penalty petition. The Secretary’s penalty peititon was filed on May 10, 2023 and the operator’s 

motion to reopen was filed one week later. The timing of that filing appears to indicate that the 

operator reviewed the penalty petition, recognized its error, and moved to reopen before 

receiving a notice of delinquency. The Commision 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 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). Further, Heidelberg affirms 

that it submitted a position statement to MSHA addressing the allegations in Citation No. 

9628458 (one of the citatons subject to this motion), as part of a special investigation on March 

16, 2023. The submission of this position statement is at least some circumstantial evidence of 

an intent to contest the citation. 

 Additionally, we find that the operator sufficiently explained the nature of the mistake, 

supported by a relevant affidavit. The Commission requires that “[a]t a minimum, the applicant 

for such relief must provide all known details, including relevant dates and persons involved, and 

a clear explanation that accounts, to the best of the operator's knowledge, for the failure to 

submit a timely response and for any delays in seeking relief once the operator became aware of 

the delinquency or failure. . . .” Lone Mountain, 35 FMSHRC at 3345 (citing Higgins Stone Co., 

32 FMSHRC 33, 34 (Jan. 2010)). Here, the operator provided pertinent details including the 

party involved, relevant dates, and a clear explanation of procedures used to send contests. 

Accordingly, based upon the operator’s explanation of its procedures, its attentiveness upon 

receiving the penalty petition and quick action thereafter, we find that its failure to timely contest 

the citations on the fourth page of the assessment was the result of a good faith mistake, and not 

the result of unreliable procedures. 

We therefore conclude that the operator has established good cause for its failure to 

timely file in these circumstances. In the interest of justice, we hereby reopen Citation Nos. 

1 The operator requests to reopen Citation Nos. 9628458, 9628337, and 9628453. 
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9628458, 9628337, and 9628453 and remand the matter 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:

William K. Doran, Esq.

Margaret S. Lopez, Esq.

Ogletree, Deakins, Nash, Smoak &Stewart, P.C.

1909 K Street, N.W., Suite 1000

Washington, DC 20006

Willaim.doran@ogletree.com

Margaret.lopez@ogletree.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