Secretary of Labor v. Holcim-WCR, Inc.

Plain-English summary

Holcim-WCR missed the contest deadline because a proposed assessment was not routed to its regional health and safety manager. The manager found the assessment by checking MSHA's data system seven days after it became final, and Holcim immediately began seeking reopening before MSHA sent any notice. The Secretary opposed relief because Holcim did not explain the routing failure or its corrective changes in detail. The Commission credited Holcim's proactive discovery, prompt filing, and limited history of reopening requests. It reopened the assessment and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and the case was remanded.
• Key point: Proactive monitoring and prompt action after an isolated routing error can support reopening.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH
:

ADMINISTRATION (MSHA)
:

:

                    v.

: Docket No. WEST 2023-0313

: A.C. No. 05-04889-577315

HOLCIM – WCR, INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, Baker, and
Marvit, 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 July 13, 2023, the Commission received from
Holcim-WCR, Inc. (“Holcim”) 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).

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicates that the proposed assessment was delivered to the operator on May 22,
2023. The assessment became a final order of the Commission on June 21, 2023.

Holcim asserts that its internal office procedure requires routing
of proposed civil penalty assessments to its Regional Health and Safety Manager
for evaluation and contest determinations. It contends that the assessment here
was not routed to the Safety Manager upon receipt due to an inadvertent internal
routing error. Holcim learned of the proposed civil penalty assessment on June
28, 2023, when the Safety Manager saw the assessment on MSHA’s data retrieval
system. The operator maintains that it was intending to contest Order No. 9729218
and the associated civil penalty. It states that it began the process to reopen
the order prior to any notification from MSHA and as soon as the mistake was
discovered. Holcim also claims that it took steps to modify its internal routing
procedure to streamline the procedure and to prevent routing errors in the
future. The operator argues that surrounding
circumstances demonstrate that its failure to timely contest was “the result of
an inadvertent and rare routing error and oversight.” Holcim MTR at 4. It also
contends that no one will be prejudiced by acceptance of a late contest in this
case as the delay is not significant.

The Secretary opposes the motion arguing that not only did Holcim
miss the deadline to contest the specific order, but it also neglected to pay
the penalty amounts for all five citations contained in the assessment. [1] She states that as a mine operator,
Holcim should be familiar with the processing of proposed assessments—especially
when they involve significant and substantial (“S&S”) violations. The
Secretary argues that the operator’s failure, which took more than a month to
discover, is not excusable neglect and the assessments must be taken seriously
and handled with care. She contends that Holcim’s reason that its failure was
the result of an “internal routing error” is vague and gives no explanation as
to why it was a routing error, or how it happened. In addition, Holcim does not
explain what changes were made to fix the error, and what procedures will be
employed to ensure proper and timely handling of MSHA communications in the
future. The Secretary maintains that Holcim has failed to provide a viable
justification for its failure to timely contest the assessment, thus, its
motion should be denied without prejudice.

Here,
Holcim discovered its error by proactively checking MSHA’s mine data retrieval
system and immediately moved to reopen the case within 30 days of the final
order. The operator also does not have a lengthy history of filing motions to
reopen. Therefore, having reviewed Holcim’s request and the Secretary’s
response, we find that due to an administrative error, the penalty assessment
was not timely contested. 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/ 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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

William K. Doran, Esq.

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

1909 K Street, N.W., Suite 1000

Washington, DC 20006

[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 has since paid the associated civil penalties.