Secretary of Labor v. The Monarch Cement Company

Plain-English summary

Monarch Cement failed to contest an assessment because personnel set it aside while they were occupied with an MSHA inspection. The Secretary opposed reopening. The Commission held that MSHA inspections are routine events and that operators must maintain procedures for handling recurring Mine Act obligations during them. It found that the company's explanation showed an inadequate internal processing system rather than unusual circumstances beyond its control. The Commission denied the reopening motion.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: Routine inspection demands do not excuse a missed contest deadline; operators must preserve reliable assessment-processing controls during normal MSHA activity.

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.
THE MONARCH CEMENT COMPANY |
|
|
Docket No. CENT 2025-0331 A.C. No. 14-00124-618136
|

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

ORDER

BY: Rajkovich, Chair; Jordan, and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On July 21, 2025, the Commission received from The Monarch Cement Company (“Monarch Cement”) 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 April 28, 2025, and became a final order of the Commission on May 28, 2025. On July 15, 2025, MSHA sent Monarch Cement a delinquency letter. Monarch Cement asserts that the proposed assessment was “set aside” because all personnel involved in processing the assessment were consumed with an MSHA inspection occurring at the time. The Secretary opposes the request to reopen.

The Commission has made it clear that
where a failure to contest a proposed assessment results from an inadequate or
unreliable internal processing system, the operator has not established grounds
for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC
3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb.
2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland
Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co.,
30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061,
1062 (Dec. 2008).

MSHA
inspections are a routine occurrence in mines and do not alone justify neglect
in processing an assessment. Compare CML Metals Corp., 37 FMSHRC
2527, 2528 (Nov. 2015) (denying a motion to reopen where the failure to designate
a safety person to handle routine MSHA enforcement matters represented an
inadequate internal processing system), with Cranesville Aggregates,
45 FMSHRC 811, 812 (Sept. 2023) (reopening where the failure to contest was the
result of a coincidental series of personnel issues and unlikely to recur), and
Naselle Rock & Asphalt Co., 43 FMSHRC 311, 312 (June 2021) (reopening
a contest filed one day late due to unusual pandemic-related circumstances). To
the contrary, operators are expected to ensure appropriate procedures are in
place to handle recurring and expected obligations under the Mine Act. Failure
to do so indicates an inadequate internal processing system. See, e.g., Cumberland
Contura, LLC, 40 FMSHRC 1129, 1130 (Aug. 2018) (failure to properly train
employees indicates an inadequate internal processing system); TM Crushing,
LLC, 47 FMSHRC 302, 303 (Apr. 2025) (noting the Secretary’s argument that lack
of available resources and training during staffing changes indicates in
inadequate internal processing system).

Accordingly, we deny Monarch Cement’s motion.

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, concurring:

I write to agree with the Majority in this case for the reasons set forth below.

Explosive Contractors, 46 FMSHRC
965 (Dec. 2024), I dissented and explained that Congress did not grant the
Commission the authority to reopen final orders under section 105(a) of the
Mine Act. The Commission’s repeated invocation of Federal Rule of Civil
Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech, I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975 (citing Hancock Materials,
Inc., 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for
the proposition that the Commission may not reopen final orders under its
statutory grant, but an operator may proceed if it has not properly received a
proposed order.

In the instant case, as the Majority recounts, the Commission’s order became final under the language of section 105(a). The Majority denies reopening in its opinion because the operator has not alleged good cause or provided a factual accounting for its failure to timely contest the penalties. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority in denying reopening in this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Mike Klauman

Corporate Safety Director

The Monarch Cement Company

P.O. BOX 1000

Humboldt, KS 66748

[email protected]

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting
Chief Administrative Law Judge Michael G. Young

Office of
the Chief Administrative Law Judge

Federal
Mine Safety and Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]