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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 February 16, 2023, the Commission received from 

Greenbrier Minerals, LLC (“Greenbrier”) 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. 

GREENBRIER MINERALS, LLC

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Docket No. WEVA 2023-0191 

A.C. No. 46-09319-569162 

September 20, 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 January 7, 2023, and became 

a final order of the Commission on February 6, 2023. The following day, Greenbrier filed its 

contest of the assessment. A few days later, Greenbrier received a letter from MSHA informing

Greenbrier that the contest for the assessment had been untimely filed. On February 16, 2023, 

MSHA received partial payment of the assessment.

Greenbrier seeks to reopen the assessment so that it may contest five citations—Citation 

Nos. 9590068, 9590072, 9590074, 9590087, and 9590088.1

 Greenbrier maintains that its safety 

specialist miscalculated the deadline to submit the contest of the assessment as February 7, 2023, 

resulting in the contest being filed one day after the deadline to contest the assessment. The 

Secretary of Labor does not oppose the request to reopen.

We note that the motion to reopen was timely filed. 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 motion to reopen was filed on February 16, 2023, within 

30 days of the final order of February 6, 2023. Therefore, the motion to reopen was filed within 

a reasonable amount of time.

1 The operator states that it is in the process of paying the full amount of the proposed 

assessment but maintains that any payment of these citations is made merely to avoid any 

potential delinquencies and does not waive its right to contest these five citations. Motion to 

Reopen, at 1 n.1. Commissioner Baker has previously stated that it is his position that the 

accidental payment of a civil penalty does not constitute excusable neglect. See e.g. Omya, Inc., 

45 FMSHRC 131 (Mar. 2023). However, in light of the operator’s explanation for its payment 

of the civil penalty, Commissioner Baker would determine that in the instant case payment was 

not the result of an inadequate or unreliable internal processing system. 
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 Having reviewed Greenbrier’s request and the Secretary’s response, we find that 

Greenbrier has demonstrated good cause for its failure to timely respond and acted in good faith 

by timely filing its request to reopen. 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:

Lorna M. Waddell

F. Thomas Rubenstein

Dinsmore & Shohl LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

Lorna.waddell@dinsmore.com

Tom Canterbury

Manager of Safety

PO Box 446

Man, WV 25635

Tom.canterbury@coronadous.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