Secretary of Labor v. Heidelberg Materials US Cement, LLC

Plain-English summary

Heidelberg Materials timely contested five penalties but unintentionally omitted the assessment's fourth page when scanning the contest form. Three citations on that page were therefore not included. After the Secretary filed a petition on the timely contests, Heidelberg reviewed the filing, recognized the omission, and moved to reopen one week later before any delinquency notice. An affidavit identified the employee, dates, and precise scanning error, and a prior position statement supported an intent to contest one citation. The Commission found a good-faith mistake, reopened the three citations, and remanded them.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Three citations omitted from the scanned contest form were reopened and remanded.
• Key point: A specific, documented scanning error and immediate corrective action supported reopening.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

                    v.

HEIDELBERG
MATERIALS US

CEMENT LLC,

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Docket
No. CENT 2023-0192

A.C.
No. 13-00095-572679

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

ORDER

BY THE COMMISSION:

        This

case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On May 17, 2023, the Commission received from Heidelberg
Materials US Cement LLC (“Heidelberg”) a motion to reopen a final order of the
Commission pursuant to section 105(a) of the 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 to the operator on March
13, 2023. On March 19, 2023, Heidelberg timely contested five of the 38
proposed penalties contained in the assessment. The remaining 33 uncontested penalties
therefore became final orders of the Commission 30 days later (April 12, 2023).
On May 10, 2023, the Secretary of Labor filed a penalty petition for the five
contested citations.

On May 17, 2023, the operator filed a
motion to reopen three of the originally uncontested penalties. [1]
Heidelberg alleges that it intended to contest those three citations, but
failed to as a result of a mistake. As specified in an attached affidivt, the
operator’s Safety Manager states that she omitted the fourth page of the
assessment when scanning the documents, which led to her failure to contest
citations listed on that page when transmitting the contest form to MSHA. The
Secretary opposes the operator’s motion, alleging that Heidelberg does not provide
a sufficent explanation of the mistake.

We find that the operator has established that
it was acting in good faith. It timely filed a contest form, albeit incomplete,
and then promptly filed the subject motion after receiving the penalty petition.
The Secretary’s penalty peititon was filed on May 10, 2023 and the operator’s
motion to reopen was filed one week later. The timing of that filing appears to
indicate that the operator reviewed the penalty petition, recognized its error,
and moved to reopen before receiving a notice of delinquency. The Commision has
held that quick action after recognizing an error militates in favor of
reopening. “Motions 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). Further, Heidelberg affirms that it submitted a position
statement to MSHA addressing the allegations in Citation No. 9628458 (one of
the citatons subject to this motion), as part of a special investigation on
March 16, 2023. The submission of this position statement is at least some
circumstantial evidence of an intent to contest the citation.

        Additionally,

we find that the operator sufficiently explained the nature of the mistake,
supported by a relevant affidavit. The Commission requires that “[a]t a
minimum, the applicant for such relief must provide all known details,
including relevant dates and persons involved, and a clear explanation that
accounts, to the best of the operator's knowledge, for the failure to submit a
timely response and for any delays in seeking relief once the operator became
aware of the delinquency or failure. . . .” Lone Mountain, 35 FMSHRC at
3345 ( citing Higgins Stone Co ., 32 FMSHRC 33, 34 (Jan. 2010)). Here, the
operator provided pertinent details including the party involved, relevant
dates, and a clear explanation of procedures used to send contests. Accordingly,
based upon the operator’s explanation of its procedures, its attentiveness upon
receiving the penalty petition and quick action thereafter, we find that its
failure to timely contest the citations on the fourth page of the assessment
was the result of a good faith mistake, and not the result of unreliable
procedures.

We therefore conclude that the operator
has established good cause for its failure to timely file in these
circumstances. In the interest of justice, we
hereby reopen Citation Nos. 9628458, 9628337, and 9628453 and remand the matter 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/
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:

William
K. Doran, Esq.

Margaret
S. Lopez, Esq.

Ogletree,
Deakins, Nash, Smoak &Stewart, P.C.

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

[email protected]

[email protected]

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

[email protected]

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

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

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

[email protected]

[1] The operator requests
to reopen Citation Nos. 9628458, 9628337, and 9628453 .