Secretary of Labor v. Heidelberg Materials US Cement LLC

Plain-English summary

Heidelberg Materials asked to reopen a penalty assessment after its safety manager said the mine never received it. MSHA showed that the assessment went to the current address of record and that the plant manager signed for delivery. The Commission found Heidelberg's explanation cursory and contradicted by the delivery evidence, so it denied reopening. Commissioner Marvit agreed with denial but wrote separately that he believes the Commission lacks statutory authority to reopen section 105(a) final orders at all.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: A general claim of nonreceipt does not justify reopening when official records show delivery and a manager's signature.

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

Docket
No. LAKE 2025-0129

A.C.
No. 12-00063-609727

BEFORE: 
Jordan,
Chair; Baker and Marvit, Commissioner s

ORDER

BY: Jordan, Chair; and
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 February 3, 2025, the Commission received
from Heidelberg Materials US Cement LLC (“Heidelberg”) 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 14, 2024, and
became a final order of the Commission on December 16, 2024. A delinquency
notification was mailed to the operator on January 29, 2025.

Heidelberg’s safety manager claims that the
operator never received the Proposed Assessment at the mine. The Secretary opposes
the request to reopen. She asserts that MSHA sent the Proposed Assessment to
Heidelberg’s address of record and offers proof of delivery confirmation and other
documentation.

We note that MSHA’s Legal ID Report shows the
address of record for the mine and operator to be 200 Mill Creek Road,
Mitchell, IN 47446, and that the last effective date for Operator’s address was
August 15, 2024. See Attachment D of Secretary’s response. MSHA records
do not evidence any undeliverable or returned mail for Operator. U.S.P.S.
records also reflect that Heidelberg’s plant manager signed for the delivery of
the Assessment. See Attachment B, D.

Operators must give specific reasons and
detailed explanations for their failure to file timely contests. See, e.g. ,
Potter South East, LLC , 45 FMSHRC 152, 153-54 (Mar. 2023). Providing
vague or cursory explanations is reason enough to deny a motion to reopen. Southwest
Rock Prods, Inc. , 45 FMSHRC 747, 748 (Aug. 2023) (“a grant of relief under
Rule 60(b) requires more than ‘general assertions or conclusory statements as
to why an operator failed to timely contest’”). We find that Heidelberg’s stated
justification for reopening is cursory and contradicted by the evidence. This
is insufficient to justify relief under Rule 60(b).

Accordingly,
we deny Heidelberg’s motion.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/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.

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 (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:                               

Derek
M Smith, Safety

Heidelberg
Materials

US
Cement LLC., Mitchell Plant

200
Mill Creek Road

Mitchell,
IN 47446

[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]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]