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: Jordan, Chair; Althen and Rajkovich, Commissioners

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

§ 801 et seq. (2018) (“Mine Act”). On November 30, 2022, the Commission received from 

Kiewit Mining Group (“Kiewit”) two motions seeking to reopen penalty assessments 

that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a).1

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 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEST 2023-0051 and WEST 2023-0053 because they involve similar factual 

and procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

KIEWIT MINING GROUP

:

: 

: 

: 

: 

: 

:

Docket No. WEST 2023-0051 

A.C. No. 10-02177-557454 

Docket No. WEST 2023-0053 

A.C. No. 10-02177-559239 

August 21, 2023
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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). 

Kiewit explains that all correspondence for the mine is automatically routed to the Post 

Office in Soda Springs, Idaho, where it is held for twice-weekly pickup by a mine employee. 

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

the U.S. Postal Service indicate the assessment in Docket No. WEST 2023-0051 was available 

for pickup at the Soda Springs Post Office on June 30, 2022, and the assessment in Docket No. 

WEST 2023-0053 was available for pickup on July 25, 2022. The assessments were returned to 

the Secretary as unclaimed approximately two weeks later. The assessments became final orders 

of the Commission on August 1, 2022, and August 24, 2022, respectively.2 

Delinquency notices were sent to the operator on October 11 and November 4, 2022. 

On November 7, Kiewit reached out to MSHA for more information regarding the status of 

assessments. MSHA provided the operator with the USPS delivery date information and copies 

of the assessments on November 15, and Kiewit filed its motions to reopen on November 30. 

Kiewit was unable to identify the specific cause of the failure to collect the assessment 

packages. However, the operator assures the Commission that its office procedures are normally 

reliable and that the Post Office is routinely checked twice a week. Kiewit notes that it has never 

before been untimely in filing a notice of contest. The Secretary does not oppose the operator’s 

requests to reopen. 

In light of Kiewit’s history, we find that this mistake does not indicate an inadequate 

processing system, and is unlikely to recur. We also note that the operator followed up with 

MSHA and filed its motions to reopen within a reasonable amount of time.3

 We also recognize 

that mail delivery during the relevant period was affected by the unprecedented strain of the 

COVID 19 pandemic. Having reviewed Kiewit’s requests and the Secretary’s responses, we find 

that the operator’s failure to timely file was the result of excusable mistake. 

2

 The Commission has previously found motions to reopen to be moot where an operator 

never received the relevant assessment. E.g., Delhur Industries, Inc., 43 FMSHRC 396 (Aug. 

2021). While the assessments at issue here technically never reached the operator’s property, we 

find this case to be distinguishable. The assessments reached the operator’s designated location 

for all mail delivery, akin to a P.O. Box or off-site office. 

3 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). Here, the operator was 

provided with the USPS records and copies of the citations on November 15, 2022, and the 

motions to reopen were filed on November 30, 2022. 
3 

In the interest of justice, we hereby reopen these matters and remand them 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
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Commissioner Baker, dissenting in part: 

In this case, Kiewit failed to timely contest the proposed penalty at issue in Docket No. 

WEST 2023-0051, and then paid the amount owed. For the reasons set forth in my dissent in 

Omya Inc., 45 FMSHRC __, 2023 WL 2559811 (Mar. 9, 2023), I do not believe it is accurate to 

characterize this action as a justifiable mistake or excusable neglect. 

Therefore, I would deny Kiewit’s motion to reopen with respect to Docket No. WEST 

2023-0051. 

________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Eric Lauck, Safety Manager

Kiewit Mining Group

3826 Blackfoot River Road

Soda Springs, ID 83276

Eric.lauck@kiewit.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

Office of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov