November 2020
TABLE OF CONTENTS

COMMISSION ORDERS
11-04-20

DELHUR INDUSTRIES, INC.

CENT 2020-0099-M

Page 857

11-04-20

CALLENDER CONSTRUCTION
COMPANY, INC.

LAKE 2020-0092-M

Page 860

11-04-20

BUCHANAN MINERALS, LLC

VA 2020-0009

Page 863

11-04-20

COMMONWEALTH MINING, LLC

VA 2020-0021

Page 866

11-04-20

FREEPORT-MCMORAN MORENCI
INC.

WEST 2019-0278-M

Page 869

11-04-20

EIGER MOUNTAIN CRUSHING,
L.L.C.

WEST 2019-0517-M

Page 872

11-04-20

GENESIS ALKALI, LLC

WEST 2020-0156-M

Page 875

11-18-20

NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

SE 2020-0163-M

Page 878

11-18-20

NORTH AMERICAN MILLWRIGHT
SERVICES, INC.

YORK 2019-0010

Page 880

11-18-20

O&G INDUSTRIES, INC.

YORK 2020-0048-M

Page 883

11-20-20

HUBER CARBONATES, LLC

LAKE 2019-0236

Page 885

i

11-20-20

IMERY’S CARBONATES USA, INC.

SE 2020-0140

Page 888

11-20-20

INWOOD QUARRY, INC.

WEVA 2019-0221

Page 891

11-30-20

IMAGE MATERIALS

CENT 2020-0017

Page 894

11-30-20

HOLCIM (US) INC.

PENN 2020-0022

Page 897

11-30-20

IRON MOUNTAIN QUARRY, LLC

WEST 2019-0082

Page 901

11-30-20

INDUSTRIAL PROCESS
EQUIPMENT CONSTRUCTORS

YORK 2018-0084

Page 904

ii

No review was granted or denied during the month of November 2020.

iii

COMMISSION ORDERS

42 FMSHRC Page 856

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2020-0099-M
A.C. No. 45-03093-504693

v.
DELHUR INDUSTRIES, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 March 16, 2020, the Commission received from DelHur
Industries, Inc. (“DelHur”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 11, 2019, and
became a final order of the Commission on January 10, 2020. DelHur contends that it never
received the proposed penalty assessment and was not aware of the assessment until it received
MSHA’s delinquency notice, which was sent on February 25, 2020. Upon receipt of MSHA’s

42 FMSHRC Page 857

delinquency notice, DelHur contacted MSHA, which directed the operator to contact the
Commission. DelHur then filed this motion to reopen the final penalty assessment. 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 DelHur’s request and the Secretary’s response, we find that DelHur
failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or
mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 858

Distribution:
Eddee Smay
DelHur Industries, Inc.
esmay@delhur.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 859

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2020-0092-M
A.C. No. 11-00214-495359

v.
CALLENDER CONSTRUCTION
COMPANY, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 19, 2020, the Commission received from
Callender Construction Company, Inc. (“Callender”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on July 8, 2019, and became a
final order of the Commission on August 7, 2019. Callender contends that it never received the

42 FMSHRC Page 860

proposed penalty assessment. On September 23, 2019, MSHA sent a delinquency notice to
Callender. 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 Callender’s request and the Secretary’s response, we find that Callender
failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or
mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 861

Distribution:
Erik Dullea, Esq.
Erik.Dullea@huschblackwell.com
Ephraim Hintz, Esq.
Ephraim.Hintz@ huschblackwell.com
Husch Blackwell LLP
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 862

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2020-0009
A.C. No. 44-04856-496824

v.
BUCHANAN MINERALS, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 November 12, 2019, the Commission received from
Buchanan Minerals, LLC (“Buchanan”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on August 9, 2019, and became
a final order of the Commission on September 9, 2019. Buchanan’s Safety Manager, who is
responsible for reviewing and processing the proposed penalty assessment form, never received

42 FMSHRC Page 863

the subject form. Under Buchanan’s normal procedures, the form is delivered to the Post Office,
and signed for by the security guard, who would deliver the mail by placing it in corresponding
mailboxes at the mine office. The mine superintendent, to whom the form is addressed, would
then hand deliver it to the Safety Manager for processing, but the Safety Manager never received
the subject proposed assessment. On October 24, 2019, MSHA sent a delinquency notice to
Buchanan. Upon receipt of MSHA’s delinquency notice, Buchanan promptly filed a motion to
reopen the final penalty assessment. 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 Buchanan’s request and the Secretary’s response, we find that
Buchanan failed to timely contest penalties through inadvertence or mistake, and that such
inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 864

Distribution:
Lorna M. Waddell
F. Thomas Rubenstein
DINSMORE & SHOHL LLP
lorna.waddell@dinsmore.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 865

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2020-0021
A.C. No. 46-09414-501548

v.
COMMONWEALTH MINING, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 January 8, 2020, the Commission received from
Commonwealth Mining, LLC (“Commonwealth”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 15, 2019, and
became a final order of the Commission on November 14, 2019. Commonwealth, through its
representative, claims that it did not receive the proposed assessment, but that it intended to
contest the four citations included in the proposed assessment. It states that it has instituted
procedures and provided training to avoid future occurrence. On December 30, 2019, MSHA

42 FMSHRC Page 866

sent a delinquency notice to Commonwealth. Upon receipt of MSHA’s delinquency notice,
Commonwealth’s representative promptly filed a motion to reopen the final penalty assessment.
The Secretary confirms that the proposed penalty assessment was delivered to Commonwealth’s
address of record. However, he does not oppose the request to reopen and urges the operator to
take steps to ensure that future penalty contests are timely filed.
Having reviewed Commonwealth’s request and the Secretary’s response, we find that
Commonwealth failed to timely contest penalties through inadvertence or mistake, and that such
inadvertence or mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 867

Distribution:
James F. Bowman
Jimbowman61@hotmail.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 868

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2019-0278-M
A.C. No. 02-00024-480570

v.
FREEPORT-MCMORAN MORENCI INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 April 17, 2019, the Commission received from FreeportMcMoRan Morenci Inc. (“Freeport”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 14, 2019, and
became a final order of the Commission on February 13, 2019. During that time, Freeport
alleges that it was short-staffed due to the resignation of two employees in its industrial hygiene
program and that its Superintendent for Health & Safety, who is responsible for reviewing

42 FMSHRC Page 869

MSHA’s proposed assessments, was also covering the tasks of the industrial hygiene program.
Freeport believed it had followed its typical procedure, which is to forward proposed
assessments it intends to contest to outside counsel. However, on April 4, 2019, having failed to
timely contest or pay the assessment, MSHA sent a delinquency notice to Freeport. Upon receipt
of MSHA’s delinquency notice, Freeport’s Superintendent promptly sent the notice to its outside
counsel who also promptly filed a motion to reopen the final penalty assessment. 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 Freeport’s request and the Secretary’s response, we find that Freeport
failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or
mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 870

Distribution:
Laura E. Beverage
Jackson Kelly PLLC
lbeverage@jacksonkelly.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 871

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2019-0517-M
A.C. No. 45-03762-492304

v.
EIGER MOUNTAIN CRUSHING, L.L.C.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 August 30, 2019, the Commission received from Eiger
Mountain Crushing, L.L.C. (“Eiger”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 3, 2019, and became a
final order of the Commission on July 3, 2019. Counsel for Eiger claims that the operator
believed that it had timely contested the proposed assessment via certified mail to the correct
MSHA address and provided documentation of the certified mail return receipt. On August 19,
2019, MSHA sent a delinquency notice to Eiger, thereby alerting the operator that MSHA had

42 FMSHRC Page 872

not timely received its contest. Upon receipt of MSHA’s delinquency notice, counsel for Eiger
promptly filed a motion to reopen the final penalty assessment. 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 Eiger’s request and the Secretary’s response, we find that Eiger failed
to timely contest penalties through inadvertence or mistake, and that such inadvertence or
mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 873

Distribution:
Matthew DeAtley
DeAtley Law PLLC
matt@deatleylaw.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 874

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 4, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2020-0156-M
A.C. No. 48-00152-503109

v.
GENESIS ALKALI, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 January 15, 2020, the Commission received from Genesis
Alkali, LLC (“Genesis”) 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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 5, 2019, and
became a final order of the Commission on December 5, 2019. Genesis contends that due to a
temporary change in its administrative staff, it inadvertently sent its contest of the proposed
assessments for Citation Nos. 9348735 and 9348741, along with its payment for the remaining
violations on the same proposed assessment, to MSHA’s St. Louis address instead of its
Arlington office. After checking MSHA’s Data Retrieval System on December 29, 2019,

42 FMSHRC Page 875

Genesis discovered that the two citations it intended to contest were pending payment. The
operator asserts that it notified counsel, who subsequently filed this motion to reopen. The
Secretary confirms that Genesis submitted payment and 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 Genesis’s request and the Secretary’s response, we find that Genesis
failed to timely contest penalties through inadvertence or mistake, and that such inadvertence or
mistake constitutes good cause to reopen the penalty proceeding. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 876

Distribution:
Erik Dullea, Esq.
Erik.Dullea@huschblackwell.com
Ephraim Hintz, Esq.
Ephraim.Hintz@ huschblackwell.com
Husch Blackwell LLP
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 877

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 18, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2020-0163-M
A.C. No. 40-00168-508283

v.
NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 878

Distribution (e-mail):
Donna Vetrano Pryor, Esq.
Husch Blackwell LLP
Donna.Pryor@huschblackwell.com
Emily T. Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@dol.gov

42 FMSHRC Page 879

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 18, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2019-0010
A.C. No. 18-00019-476365 N492

v.
NORTH AMERICAN MILLWRIGHT
SERVICES, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 May 7, 2019, the Commission received from North
American Millwright Services, Inc. (“Millwright”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On February 15, 2019, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Millwright’s perceived failure to answer the Petition for Assessment of
Civil Penalty, mailed by the Secretary of Labor on December 7, 2018. By its terms, the Order to
Show Cause was deemed a Default Order on March 4, 2019, when it appeared that the operator
had not filed an answer within 15 days.
The penalties became delinquent on April 4, 2019, but the operator paid the assessment in
full on August 15, 2019. The Secretary does not oppose the request to reopen, but requests that
Millwright, having contested the penalty at issue, take its further obligations seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s
decision may be sought by filing a petition for discretionary 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 direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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”); Jim Walter Res., Inc.,

42 FMSHRC Page 880

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Millwright’s request and the Secretary’s response, we find that
Millwright’s request to reopen, filed approximately 30 days after the penalties became
delinquent, its payment of the penalty assessment, and the Secretary’s non-opposition,
demonstrate the operator’s good faith, and merit reopening of the case. In the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 881

Distribution (e-mail):
James Russell
CFO/COO, North American Millwright
jrussell@namillwright.com
Emily T. Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@dol.gov

42 FMSHRC Page 882

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

November 18, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2020-0048-M
A.C. No. 06-00295-502126

v.
O&G INDUSTRIES, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 883

Distribution (e-mail):
Paul T. Balavender
General Counsel, O&G Industries, Inc.
Paulbalavender@ogind.com
Emily T. Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@dol.gov

42 FMSHRC Page 884

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2019-0236
A.C. No. 11-02627- 487245

HUBER CARBONATES, LLC
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 April 25, 2019, the Commission received from Huber
Carbonates, LLC (“Huber”) a motion seeking to permit late filing of its notice of contest of a
non-assessable section 104(b) withdrawal order, 30 U.S.C. § 814(b), issued on March 14, 2019.
The Commission has decided to construe Huber’s motion as a motion to reopen pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the motion.
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).
The Commission has further held that “a section 104(b) withdrawal order may be
contested under section 105(a) in a civil penalty proceeding regardless of whether it was
separately contested under section 105(d).” UMWA v. Maple Creek Mining, Inc., 29 FMSHRC
583, 591 (July 2007). Our Maple Creek holding is consistent with the Commission’s procedural

42 FMSHRC Page 885

rule, which states that: “An operator’s failure to file a notice of contest of a citation or order
issued under section 104 of the Act, 30 U.S.C. 814, shall not preclude the operator from
challenging, in a penalty proceeding, the fact of violation or any special findings contained in a
citation or order . . .” 29 C.F.R. § 2700.21(b). We have held that this regulation plainly permits a
challenge to a section 104(b) withdrawal order in the civil penalty proceeding that includes the
citation underlying the withdrawal order. Maple Creek, 29 FMSHRC at 592.
In the instant case, although Huber has moved to essentially reopen LAKE 2019-236 to
permit contest of section 104(b) Order No. 8672913, the record shows that the proposed
assessment for underlying Citation No. 8672912 was properly contested and was the subject of
Docket No. LAKE 2019-237. As Huber timely contested the penalty assessment for underlying
Citation No. 8672912, the assessment was not a final order and reopening LAKE 2019-236 is
unnecessary. Moreover, since the filing of this motion to reopen, the Judge assigned to the
penalty docket has since issued a decision approving the settlement of underlying Citation No.
8672912, as well as Order No. 8672913.
Because Order No. 8672913 has been resolved, the motion to reopen this case is moot.
See Olmos Contracting 1, LLC, 39 FMSHRC 2015, 2019 (Nov. 2017) (“As this matter was
timely contested and has now been resolved, the motion to reopen this case is moot.”); Kembel
Sand & Gravel, 33 FMSHRC 1153, 1153-54 (June 2011). Accordingly, this motion is dismissed.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 886

Distribution:
R. Henry Moore
Arthur M. Wolfson
Patrick W. Dennison
Fisher & Phillips LLP
Six PPG Place
Pittsburgh, PA 15222
hmoore@fisherphillips.com
awolfson@fisherphillips.com
pdennison@fisherphillips.com
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Melanie Garris
USDOL/MSHA, OAASEI/CPCO
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@DOL.GOV

42 FMSHRC Page 887

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. SE 2020-0140
A.C. No. 01-00011-502106

IMERY’S CARBONATES USA, INC.
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 February 26, 2020, the Commission received from Imery’s
Carbonates USA, Inc. (“Imery”) 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), 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).
During an inspection spanning nine weeks from June to August 2019, Imery received 130
citations from the Department of Labor’s Mine Safety and Health Administration (“MSHA”).
The record indicates that the citations were divided between two proposed assessments. The first
assessment was received by Imery on October 1, 2019, and the second was delivered on October
21, 2019. The assessment in question became a final order of the Commission on November 21,

42 FMSHRC Page 888

2019. Imery claims that it timely submitted its contest of the citations in two packages, one sent
on October 16, 2019, and the other on October 26, 2019. However, the operator asserts, and
MSHA has confirmed, that the contests were inadvertently sent along with the payment of the
uncontested citations to MSHA’s address in St. Louis, Missouri, rather than to Arlington, VA.
Imery claims that it learned of its mistake in early January 2020 when it discovered that
MSHA had only processed 40 of the 72 contested citations as “under contest,” and that only its
first contest package had been forwarded to the Office of Assessments from the St. Louis office.1
MSHA sent a delinquency notice on January 6, 2020. Imery has not filed any other motions to
reopen with the Commission in the last two years. 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 Imery’s request and the Secretary’s response, we find that the operator
inadvertently mailed its contest form to MSHA’s St. Louis office along with its uncontested
penalty payments. 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

1

The citations that were processed as contested by MSHA have been docketed at the
Commission under Docket Nos. SE 2020-58 and SE 2020-59. On February 11, 2020, the
assigned Administrative Law Judge granted Imery’s unopposed Motion to Stay those
proceedings pending the outcome of this Motion to Reopen.

42 FMSHRC Page 889

Distribution:
Avi Meyerstein
Brian Hendrix
Charles Fleischmann
HUSCH BLACKWELL LLP
750 17th Street, NW, Suite 900
Washington, D.C. 20006-4675
Avi.Meyerstein@huschblackwell.com
Ryan Florio
Litigation and Regulatory Counsel
IMERYS North America
100 Mansell Court East, Suite 300
Roswell, Georgia 30076
Ryan.Florio@Imerys.com
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 890

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 2019-0221
A.C. No. 46-02119-481551

INWOOD QUARRY, INC.
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 July 23, 2019, the Commission received from Inwood
Quarry, Inc. (“Inwood”) a motion seeking to reopen a penalty assessment proceeding and relieve
it from the Default Order entered against it.
On April 2, 2019, the Chief Administrative Law Judge issued an Order to Show Cause in
response to Inwood’s perceived failure to answer the Secretary of Labor’s February 13, 2019
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a
Default Order on April 23, 2019, when it appeared that the operator had not filed an answer
within 20 days.
Inwood claims that it never received the hearing packet and was told by someone at
MSHA that the hearing paperwork was delivered to an address at “Rt. 11 South, Inwood, WV,”
which it states is not an address for the company. MSHA’s Operator Information System and the
company’s MSHA Legal ID Report shows Inwood’s principal office address as “Rt. 11 South.”
The Judge’s Show Cause Order was also sent to “Rt. 11 South.” The Secretary responds that the
Proposed Penalty Assessment was sent to P.O. Box 65, Inwood, WV 25428, which Inwood
states is the correct address. However, we note that while the correct address appears on the
Proposed Penalty Assessment form, the incorrect address appears in the Certificate of Service for
the Penalty Assessment. The Secretary does not oppose the motion to reopen, but urges the
operator to ensure that its mailing address is correctly filed with MSHA, that its responses are
timely filed, and that Show Cause Orders are taken seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary 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 direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.

42 FMSHRC Page 891

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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Inwood’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded 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

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 892

Distribution:
D.L. Morgan, Jr.
President
Inwood Quarry, Inc.
P.O. Box 65
Inwood, WV 25428
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 893

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 30, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 2020-0017
A.C. No. 41-04147-499677

IMAGE MATERIALS
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 March 17, 2020, the Commission received from Image
Materials (“Image”) a motion seeking to reopen a penalty assessment proceeding and relieve it
from the Default Order entered against it.
On January 31, 2020, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Image’s failure to answer the Secretary of Labor’s November 25, 2019
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a
Default Order on February 21, 2020, when it appeared that the operator had not filed an answer
within 20 days.
Image asserts that it timely contested the Petition for Assessment of Civil Penalty and
that its contest was lost after it was received. It states that on December 23, 2019, its contest was
sent to the MSHA Dallas office, and again to the Arlington office on February 5, 2020. 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.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary 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 direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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

42 FMSHRC Page 894

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Image’s request and the Secretary’s response, in the interest of justice,
we hereby remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists to excuse Image’s failure to respond to the show cause order, and for
further proceedings as appropriate.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 895

Distribution:
Vaughn Proffitt, CEO
Image Materials
P.O. Box 1693
Roanoke, TX 76262
office@imagecompanies.net
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 896

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 30, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. PENN 2020-0022
A.C. No. 36-00271-503052

HOLCIM (US) INC.
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 November 7, 2019, the Commission received from
Holcim (US) Inc. (“Holcim”) a motion seeking to reopen contest proceedings pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a) for section 104(b) Order Nos. 9464868 and 9464892,
issued on September 12, 2019, and September 30, 2019, respectively. The Commission has
decided to construe Holcim’s motion as a motion to reopen. The Secretary does not oppose.
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).
The Commission has held that “a section 104(b) withdrawal order may be contested
under section 105(a) in a civil penalty proceeding regardless of whether it was separately
contested under section 105(d).” UMWA v. Maple Creek Mining, Inc., 29 FMSHRC 583, 591
(July 2007).

42 FMSHRC Page 897

The record shows that the proposed assessment for Citation No. 9464851, the underlying
citation for section 104(b) Order No. 9464868, was issued on May 29, 2020, and properly
contested in Docket No. PENN 2020-0084. On August 24, 2020, the Administrative Law Judge
in that docket issued a decision approving settlement, which stated that Order No. 9464868 has
been vacated by the Secretary. We conclude that the Order was properly contested along with the
underlying citation and has been vacated. Therefore, the motion to reopen the contest of this
Order is moot.
With regard to Order No. 9464892, the operator first received the proposed penalty
assessment for underlying Citation No. 9464877 on November 4, 2019, and three days later filed
its motion to reopen on November 7, 2019. In its motion, Holcim specified that it intended to
contest Order No. 9464892 along with the underlying citation and penalty. A recent review of
the Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) data retrieval
system shows, however, that Holcim has paid the proposed civil penalty for underlying Citation
No. 9464877. To date, no civil penalties have been proposed for Order No. 9464892, and this
Order remains unresolved.
We conclude that this motion to reopen may serve as the operator’s timely notice of
contest for Order No. 9464892. Therefore, because the operator timely filed its notice of contest,
the Order is not a final order of the Commission and the motion to reopen contest of Order No.
9464892 is denied as moot. Rock N Road Quarry, 31 FMSHRC 769, 770 (July 2009); Double
Bonus Coal Co., 31 FMSHRC 358, 360 (Mar. 2009) (holding that statements in motions to
reopen could serve as operator’s notice of contest, and denying the motions as moot).

42 FMSHRC Page 898

Accordingly, we deny Holcim’s request regarding Order Nos. 9464868, as the order has
been vacated. We also deny the operator’s request regarding Order No. 9464892, as the order has
not become a final order of the Commission and we remand this matter to the Chief
Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act and
the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 899

Distribution:
Margaret Lopez, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart P.C.
1909 K Street NW, Suite 1000
Washington, DC 20006
margaret.lopez@ogletreedeakins.com
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 900

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 30, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2019-0082
A.C. No. 45-03175-476571

IRON MOUNTAIN QUARRY, LLC
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 June 21, 2019, the Commission received from Iron
Mountain Quarry, LLC (“Iron Mountain”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On February 19, 2019, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Iron Mountain’s failure to answer the Secretary of Labor’s December 21,
2018 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on March 7, 2019, when it appeared that the operator had not filed an
answer within 15 days.
The operator states that when it filed its notice of contest it provided that its counsel, Erik
Laiho, should be contacted for all matters related to the contest. Neither the operator nor its
counsel have any record of receiving any documents from MSHA after filing its contest. It also
notes that it had been having problems with postal deliveries for at least a year surrounding this
matter. The Secretary did not provide tracking information or proof that the petition was
delivered to the operator. The Secretary does not oppose the motion to reopen.
Iron Mountain asserts that it did not receive the Petition for Assessment of Civil Penalty.
It states that after it did not receive any notice of further proceedings following its notice of
contest, it reached out to the MSHA Assessment’s office and learned on May 23, 2019, that it
was in default status. After an internal investigation, the operator could not find any record that
the petition had been received. Additionally, Iron Mountain states that it has made multiple
complaints to the U.S. Postal Service because of inconsistent mail delivery over the course of a
year. There is no proof that the Petition was delivered to the operator. 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.

42 FMSHRC Page 901

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary 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 direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Iron Mountain’s request and the Secretary’s response, and the record in
this case, we find that the Order to Show Cause did not result in a final order of default because
it was never served on the operator. Accordingly, the operator’s motion is denied as moot, and
this case is remanded 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 902

Distribution:
Erik M. Laiho
Davis Grimm Payne & Marra
701 Fifth Ave., Suite 4040
Seattle, WA 98104
elaiho@davisgrimmpayne.com
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Thomas J. O’Donnell, Jr.
U.S. Department of Labor, MSHA
1030 London Drive, Suite 400
Birmingham, AL 35211
Odonnell.Thomas@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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 903

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 30, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2018-0084
A.C. No. 30-00006-469606 E938

v.
Docket No. YORK 2019-0013
A.C. No. 30-00006-477928 E938

INDUSTRIAL PROCESS EQUIPMENT
CONSTRUCTORS

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”).1 On June 3 and 4, 2019, the Commission received from
Industrial Process Equipment Constructors (“IPEC”) motions seeking to reopen the penalty
assessment proceedings and relieve it from the Default Orders entered against it.
On February 15, 2019, the Chief Administrative Law Judge issued Orders to Show Cause
in response to IPEC’s perceived failure to answer the Secretary of Labor’s September 6, 2018
and December 18, 2018 Petitions for Assessment of Civil Penalty. By their terms, the Orders to
Show Cause were deemed Default Orders on March 4, 2019, when it appeared that the operator
had not filed answers within 15 days.
IPEC asserts that the employee responsible for handling these matters mistakenly
believed she had 30 days to respond to the Show Cause Orders when it filed its responses on
March 13, 2019. During this timeframe, the employee was tending to several ill family members,
including her mother who unfortunately passed away on February 7, 2019. The operator had also
lost its secretary who would normally work with the employee on these matters, and who would
have alerted her to the deadline. The Secretary does not oppose the requests to reopen, but urges
the operator to take steps to ensure that future penalty contests are timely filed.
The Judge’s jurisdiction in these matters terminated when the default occurred.
29
C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a
judge’s decision may be sought by filing a petition for discretionary 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 direct
1

IPEC filed similar motions to reopen relying upon the same reason as a basis for reopening in two separate dockets. For the limited purpose of addressing the motions to reopen, we
hereby consolidate docket numbers YORK 2018-0084 and YORK 2019-0013, which involve
similar procedural issues. See 29 C.F.R. §2700.12.

42 FMSHRC Page 904

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s orders here have become final
decisions of the Commission.
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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed IPEC’s requests and the Secretary’s responses, under these
circumstances, we find that IPEC’s failure to respond to the Judge’s show cause orders due to
family illness and the corresponding death of her mother amount to inadvertence or excusable
neglect. See Guilmette Brothers Corp., 22 FMSHRC 803, 804 (July 2000) (granting request to
reopen where operator’s wife was undergoing cancer surgery); Northern Kansas Rock, Inc., 22
FMSHRC 486, 487-88 (Apr. 2000) (granting request to reopen where the operator failed to
timely file because husband was undergoing medical treatment and surgery); Tigue Construction
Co., 21 FMSHRC 9, 10-11 (Jan. 1999) (granting operator’s request where its vice president, who
was the employee responsible for answering charges, unexpectedly underwent quadruple bypass
surgery); KenAmerican Resources, Inc., 20 FMSHRC 199, 200-01 (Mar. 1998) (reopening
proceedings where operator’s safety director, who routinely handles MSHA violations, was
home recovering from surgery).

42 FMSHRC Page 905

In the interest of justice, we hereby reopen these proceedings and vacate the Default
Orders. Accordingly, these cases are remanded 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.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

42 FMSHRC Page 906

Distribution:
Sharon Regan-Brown, Safety Net
Industrial Process Equipment Constructors
1471 Big Lake Road
Gaylord, MI 49735
SharonsSafetynet@gmail.com
Emily Toler Scott, Esq.
Office of the Solicitor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Norman C. Ridley, CLR
U.S. Department of Labor, MSHA
Thorn Hill Industrial Park
178 Thorn Hill Road, Suite 100
Warrendale, PA 15086
Ridley.Norman@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
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov

42 FMSHRC Page 907