Secretary of Labor v. Nelson Quarries, Inc.

Plain-English summary

Nelson Quarries said it timely tried to contest proposed penalties but may have sent the notice to the wrong MSHA office. Commissioner Baker, joined by Commissioner Marvit, found that the operator supplied no details or evidence of that attempt and had received filing instructions nine days before the deadline. They denied reopening despite the Secretary's lack of opposition. Commissioner Marvit also repeated his view that the Commission lacks reopening authority. Chair Jordan dissented, finding that the operator's communications with MSHA showed a timely good-faith effort and that similar misaddressed contests had been reopened.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen was denied by a two-to-one vote.
• Key point: A claim that a contest may have been misaddressed needs specific supporting details, even when the Secretary does not oppose 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.

NELSON
QUARRIES, INC.,              

Docket
No. CENT 2025-0191

A.C.
No. 14-01477-609859

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

ORDER

BY:
Baker, Commissioner

This matter arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On
March 25, 2025, the Commission received from Nelson Quarries, Inc. (“Nelson
Quarries”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the proposed assessment that became a final order.

On December 20, 2024, the subject proposed
assessment became a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a), after Nelson Quarries did not file a notice
of contest. Mine Safety and Health Administration, Mine Data Retrieval
System , www.msha.gov/data-and-reports/mine-data-retrieval-system (last
visited July 25, 2025).

Under section 105(a), an operator who
wishes to contest a proposed penalty must notify the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) 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).

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).

In its motion to reopen, Nelson Quarries asserts
that it timely filed to contest the proposed penalties within 30 days, but “may
have sent our notice of contest to the wrong [MSHA office].” Mot. at 1. Nelson
Quarries further represents that it had incorrectly assumed that MSHA would
have routed its notice of contest to the correct office. The Secretary filed a
response indicating that she did not oppose the operator’s motion. 

Attached to the operator’s motion is an
email it received from MSHA’s Wilkes-Barre Office of Assessments on December
11, 2024. The email states:

Per our phone conversation, I have
attached the proposed assessment for statement number 000609859

When contesting, please send or email to
the instructions on the 3 rd page of the highlighted area.

Ex.
1.

The Commission requires that an operator
seeking to reopen a proceeding after a final order bear the burden of
establishing an entitlement to extraordinary relief. “At 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 . . . .” Higgins Stone Co ., 32 FMSHRC 33, 34
(Jan. 2010). Moreover, “[i]t is an operator’s responsibility to fully read any
information provided by the Secretary in connection with a proposed penalty.” Mike
Morgan Indus., LLC , 46 FMSHRC 863, 865 (Oct. 2024) (citing Stone Zone ,
41 FMSHRC 272, 275 (June 2019)).

I
conclude that the operator has failed to satisfy its burden and to “fully read”
the information provided on how to contest the penalty. Nelson Quarries’ motion
provides no details regarding its alleged attempt to timely contest. The email
attached to the motion contains no reference to an attempt to contest the
penalties; instead, it references a prior “phone conversation.” Additionally, the
email was sent by MSHA on December 11, 2024 – nine days before the 30-day
contest period expired. Rather than demonstrating good cause for Nelson
Quarries’ failure to timely file, I conclude that the email in exhibit demonstrates
that the operator missed a second opportunity to timely file.

Because
the operator has not provided specific details or evidence regarding its
attempt to timely file, I find that it did not satisfy its burden to
demonstrate that its failure to timely file was the result of a mistake,
excusable neglect, or some other good cause reason. Accordingly, Nelson
Quarries’ motion is denied.   

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring:

I write to agree with Commissioner Baker
in this case for the reasons he set forth above and the additional reasons
explained below.

In 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, 977
(Dec.

2024)
(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, the operator received
the final order. We deny 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 in denying reopening in this matter.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Chair
Jordan, dissenting:

On March 25, 2025, Nelson Quarries filed
its motion to reopen with the Commission.

Nelson Quarries maintains that it timely
filed to contest the proposed penalties; it further states that the reason the
contest form was not received by MSHA may have been because it was mistakenly
sent to the wrong address. Nelson Quarries attached a December 11, 2024 email
it received from MSHA’s Wilkes-Barre Office of Assessments, as an exhibit to
its motion to reopen. The email demonstrates that the operator was
communicating with MSHA about contesting the penalties within the 30-day
contest period. An operator’s good faith efforts to timely contest penalties
are a relevant factor when considering whether the operator has indicated a
good cause reason. See, e.g., Deatley Crushing Co. , 46 FMSHRC 632 (Aug
13, 2024). I find that Nelson Quarries has established that it was acting
timely and in good faith in an attempt to contest the penalties. 

Moreover, the Commission has routinely
granted motions to reopen when the operator has made timely, albeit mistaken,
attempts to contest a civil penalty assessment. See, e.g., Mitsubishi Cement
Corp ., 47 FMSHRC 283 (Apr. 2025) (granting an unopposed motion to reopen
where the operator sent its notice of contest to St. Louis, Missouri). Here,
Nelson Quarries maintains that it made a timely attempt to contest. The
Secretary does not oppose the operator’s request to reopen.

Accordingly,
upon consideration of the operator’s motion to reopen, and the Secretary’s
response, I conclude that Nelson Quarries has sufficiently established that its
failure to timely file was the result of a mistake.  

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

Distribution:

Paul
M. Nelson

Representative

Nelson
Quarries, Inc.

206
Knott Street

Jasper,
MO  64755

[email protected]

Patrick
Clift

Vice
President

Nelson
Quarries, Inc.

POB
100

Gas,
Kansas  66742

[email protected]

Marcus
D. Reed, Esq.

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]

[email protected]

Melanie
Garris

US Department of Labor/MSHA 

Office
of Assessments, Room N3454 

200
Constitution Ave NW 

Washington,
DC 20210 

[email protected] 

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]