**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION** 

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

**WASHINGTON, DC 20004-1710** 

 

 

 

 

 

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

                 

**ORDER** 

 

BYTHE COMMISSION:  

 

                This matter arisesunder the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.(2018) (“Mine Act”). On June 24, 2023, the Commission received from BuzziUnicem USA (“Buzzi”) a motion seeking to reopen a penalty assessment proceedingand relieve it from the Default Order entered against it.  

 

OnOctober 17, 2022, the Chief Administrative Law Judge issued an Order to ShowCause in response to Buzzi’s perceived failure to answer the Secretary ofLabor’s August 16, 2022, Petition for Assessment of Civil Penalty. By itsterms, the Order to Show Cause was deemed a Default Order on November 17, 2022,when it appeared that the operator had not filed an answer within 30 days. 

 

Buzzirequests relief in order to state its reasons for why it disagrees with allegedviolations alleged in the Secretary’s petition. The Secretary opposes therequest to reopen noting that the operator has failed to provide anyexplanation for its failure to file an answer to the Petition for Assessment ofPenalty, respond to the Order to Show Cause and Order of Default, and for whyit delayed responding to a delinquency letter issued by the Department ofLabor’s Mine Safety and Health Administration (“MSHA”) on February 1, 2023. 

                                 

                The Judge’sjurisdiction in this matter terminated when the default occurred. 29C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s proceduralrules, relief from a Judge’s decision may be sought by filing a petition fordiscretionary review within 30 days of its issuance. 30 U.S.C. §823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not directreview within 40 days of a decision’s issuance, it becomes a final decision ofthe Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here hasbecome a final decision of the Commission.      

Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See*29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe guided so far as practicable by the Federal Rules of Civil Procedure”); *JimWalter Res., Inc.*, 15 FMSHRC 782, 786-89 (May 1993). We have also observedthat default is a harsh remedy and that, if the defaulting party can make ashowing of good cause for a failure to timely respond, the case may be reopenedand appropriate proceedings on the merits will be permitted. *See Coal Prep.Servs., Inc.*, 17 FMSHRC 1529, 1530 (Sept. 1995). 

 

Having reviewed Buzzi’s request and the Secretary’sresponse, we conclude that the operator has failed to provide sufficientinformation to determine whether good cause may exist to reopen the final order.We have held that a grant of relief under Rule 60(b) requires more than“general assertions or conclusory statements as to why an operator failed totimely contest.” *Atlanta Sand & Supply Co.*, 30 FMSHRC 605, 608 (July2008). However, Buzzi’s motion to reopen provides no explanation for itsfailure to timely file a petition or respond to the Chief Judge’s Order to ShowCause and Order of Default.  

 

In consideringwhether an operator has unreasonably delayed in filing a motion to reopen, we also find relevant the amount of time thathas passed between an operator’s receipt of a delinquency notice and theoperator’s filing of its motion to reopen. *See,e.g., Left Fork Mining Co.*, 31 FMSHRC 8, 11 (Jan. 2009); *HighlandMining Co.*, 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt ofnotice of delinquency mustexplain the reasons why the operator waited to file areopening request, and lack of explanation is grounds for the Commission to denythe motion).Here, the operator attempted to reopen the case approximately four months afterMSHA sent it a delinquency letter. No explanation is provided for this lengthydelay. 

 

Accordingly, we deny Buzzi’srequest to reopen with prejudice. *See Southwest Rock Prod., Inc.*, 45FMSHRC ___, No. WEST 2021-0275 (Aug. 30, 2023) (denying motion toreopen where operator provided insufficient information to determine whethergood cause existed to reopen and operator failed to explain lengthy delay infiling motion).

 

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

/s/ William I. Althen

William I. Althen,Commissioner 

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

Distribution: 

 

SteveMiloscia 

Safety &Health Manager

BuzziUnicem USA, Selma Plant 

1000River Cement Road

Fetus,MO 63028 

steve.miloscia@buzziunicemusa.com 

 

AprilNelson, Esq. 

AssociateSolicitor 

Officeof the Solicitor 

U.S.Department of Labor 

Divisionof Mine Safety and Health 

20112th Street South, Suite 401 

Arlington,VA 22202 

Nelson.April@dol.gov 

 

EmilyToler Scott, Esq. 

Counselfor Appellate Litigation 

Officeof the Solicitor 

U.S.Department of Labor 

Divisionof Mine Safety and Health 

20112th Street South, Suite 401 

Arlington,VA 22202 

scott.emily.t@dol.gov 

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401 Arlington, VA 22202 Garris.Melanie@DOL.GOV 

 

ChiefAdministrative Law Judge Glynn F. Voisin Federal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520N Washington, DC 20004-1710 GVoisin@fmshrc.gov