1 

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. (2012) (“Mine Act”). On December 28, 2022, the Commission received from 

Cranesville Aggregates (“Cranesville”) 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 

1 The Acknowledgement Letter previously issued in this docket incorrectly listed the 

assessment control number as 30-00983-546611. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CRANESVILLE AGGREGATES

:

: 

: 

: 

: 

: 

:

Docket No. YORK 2023-0032 

A.C. No. 30-00983-5646111

September 14, 2023
2 

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 11, 2022, and 

became a final order of the Commission on November 10, 2022. Cranesville asserts that its 

Safety Department was undergoing a major personnel transition when the proposed assessment 

was received: the safety director had semi-retired and was working from home, a new safety 

director had not yet been hired, and the safety manager was on leave until mid-November. As a 

result, the assessment did not come to the attention of the safety department until the week of 

November 20, at which time it was promptly contested. MSHA received the notice of contest on 

November 28, 2022, 18 days after the assessment became final. 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 Cranesville’s request and the Secretary’s response, we find that the 

failure to timely contest the assessment was the result of a coincidental series of personnel issues, 

and therefore unlikely to recur. See River View Coal, LLC, 45 FMSHRC __ (June 2023). We 

also note that the operator has no history of untimely filing, filed its notice of contest promptly 

once it became aware of the proposed assessment, and filed its motion to reopen relatively 

promptly thereafter. 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 
3

Distribution:

Lyndsey Gargano

EHS Director

Cranesville Block Co. Inc.

1250 Riverfront Center

Amsterdam, NY 12010

cbcsafetymgr@cranesville.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