Secretary of Labor v. Heidelberg Materials Northeast, LLC

Plain-English summary

Heidelberg's assessment passed through a new safety coordinator and eventually reached an area manager who was often away from his office. The coordinator did not notify the manager, the assessment's six-week internal routing delay was unexplained, and the manager calculated the deadline from an uncertain desk-arrival date. The Secretary opposed reopening. The Commission found that these separate failures showed inadequate training and an unreliable processing system, despite Heidelberg's prompt motion after discovery. It denied reopening, with Commissioner Marvit concurring while repeating his view that the Commission lacks reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: Several unexplained routing and deadline errors across multiple employees indicate a system failure, not one excusable mistake.

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   

NORTHEAST, LLC

Docket
No. PENN 2024-0094

A.C.
No. 36-00091-600528  

BEFORE:    Jordan,
Chair; Baker and Marvit, Commissioners  

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. (2018) (“Mine Act”).  On August 28, 2024, the Commission received
from Heidelberg Materials Northeast, 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). [1]

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 June 3, 2024, and became
a final order of the Commission on July 3, 2024.  A delinquency notice was
mailed to the operator on August 19, 2024. 

Heidelberg
asserts that the proposed assessment was not timely contested due to an
inadvertent routing error.  The operator explains that mail from MSHA is
normally signed for by the office manager and forwarded to the safety
coordinator at the regional corporate office.  The safety coordinator then distributes
the mail to the area manager responsible for the relevant mine and notifies the
area manager that mail from MSHA has been delivered.  The assessment is then
processed by the area manager.  Heidelberg further explains that its safety
coordinator had only started working at the regional office in April 2024, and
that the area manager responsible for the Glen Mills Plant is sometimes away
from his office for extended periods of time due to his work. 

Heidelberg asserts that in this instance,
the safety coordinator failed to notify the area manager of the assessment. 
The area manager discovered the assessment on his desk when he returned to his
office in late July 2024.  He learned that it had been on his desk for
approximately one week, and assumed the deadline to contest the assessment was
August 20, 2024.  He filed the contest paperwork on August 20, and learned it was
untimely the next day upon receiving MSHA’s response.  The operator claims the
new safety coordinator’s failure to notify the area manager of the assessment caused
the area manager to mistake the filing deadline, and states that it will
provide the safety coordinator with refresher training.    

The Secretary opposes the motion to reopen. 
She asserts that the operator’s failure to timely contest the assessment was
not the result of a single excusable mistake, but rather a series of mistakes indicating
an inadequate or unreliable processing system.  She further asserts that the
operator failed to adequately explain certain facts, such as the delay between
the assessment’s receipt in early June and its arrival on the area manager’s
desk in mid-July. 

We have long held that where a failure to timely
contest an assessment results from an inadequate or unreliable internal
processing system, the operator has not established grounds for reopening the
assessment.  E.g. , Georgetown Sand &
Gravel, Inc. , 46 FMSHRC 988, 990 (Dec. 2024) ; Pinnacle Mining Co .
LLC, 30 FMSHRC 1066, 1067 (Dec. 2008).  Here, Heidelberg’s failure to timely contest
the assessment was not the result of a single error by a single employee, but a
series of errors by at least two individuals.  These include the apparent
six-week delay in delivering the assessment to the area manager, the safety
coordinator’s failure to notify the area manager of the assessment, and the area
manager’s miscalculation of the filing deadline. [2]  
This series of mistakes indicates an inadequate or unreliable processing
system.  See Lopke Quarries, Inc. , 46 FMSHRC 421, 423 (July 2024).

In turn, Heidelberg has failed to adequately
justify each individual error that led to the failure to timely contest the
assessment.  A party seeking to reopen a final penalty must provide a clear
explanation that accounts, to the best of the operator’s knowledge, for the
failure to submit a timely response.  Higgins Stone Co. , 32 FMSHRC
33, 34 (Jan. 2010).  First, the operator has not adequately explained how or
why the assessment reached the area manager’s desk in mid-July, six weeks after
it was received at the regional corporate office.  Heidelberg notes that the
safety coordinator is tasked with distributing assessments, and that the area
manager learned the assessment had arrived one week prior to its discovery in
late July.  However, it also asserts that the internal routing process
succeeded because the assessment reached the proper area manager.  Mot. at 5. 
It is unclear whether the safety coordinator failed to promptly mail the
assessment, whether the assessment promptly reached the relevant office but was
not delivered to the area manager’s desk, or whether the area manager’s belief as
to when the assessment arrived on his desk was incorrect.  

Second, Heidelberg asserts that the safety
coordinator’s failure to notify the area manager was excusable because he was a
new employee.  However, operators have a responsibility to properly train all personnel
who handle proposed assessments.  If a new employee’s error arises from
inadequate training, that is evidence of an inadequate or unreliable processing
system. [3]  
Kentucky Fuel Corp. , 38 FMSHRC 632, 634 (Apr. 2016).  We note that Heidelberg’s
safety coordinator started in mid-April but still had not notified the area
manager of the assessment by late July.  This suggests that he was still unfamiliar
with his duties after three months, which indicates inadequate training.  Id.
(finding that a safety director had not been adequately trained, indicating an
inadequate processing system, where he had been in his position for two months
prior to the error).

Third, Heidelberg has not established that
the area manager’s miscalculation of the filing deadline was excusable. 
Heidelberg states that the area manager “learned” the assessment had arrived on
his desk one week before he discovered it in late July and assumed the filing
deadline was August 20, 2024.  One possible interpretation is that the area
manager mistakenly calculated the 30-day deadline based on the assessment’s
date of arrival on his desk, rather than its receipt by the operator.  However,
Heidelberg does not identify the assessment’s actual date of arrival or explain
how the area manager determined the date of arrival or calculated the
deadline.  Moreover, the operator has not established that such a mistake (if
it occurred) was excusable.  We note that the area manager was not a new
employee and was presumably familiar with the operator’s contest process.  He should
have known that assessments were first delivered to the regional corporate
office before being distributed to area managers. [4]  

The Commission acknowledges that
Heidelberg provided some detail, and that it promptly filed its motion to
reopen upon learning that the assessment had not been timely contested.  Highland
Mining Co. , 31 FMSHRC 1313, 1316-17 (Nov. 2009).  However, that is
insufficient to overcome the grounds for denial in this case.  Having reviewed Heidelberg’s
request and the Secretary’s response, we find that the operator’s failure to
timely contest the assessment arose from a series of mistakes that reflect an
inadequate or unreliable processing system and therefore do not justify relief.

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 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, 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, as the Majority
recounts, the operator received the final order.  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:

Zachary
T. Byers, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, PC

1909
K Street, N.W., Suite 1000

Washington,
DC 20006

[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

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]

[1]  Heidelberg specifically
seeks to reopen seven of the citations and penalties in the assessment: Citation
Nos. 9854178, 9854179, 9854181, 9854182, 9854197, 9854198, and 9854200.

[2] The Secretary asserts
that the operator’s errors also included failing to properly train the safety
coordinator and failing to have processing redundancies in place given the area
manager’s expected time away from the office.

[3] Heidelberg notes
that the Commission has previously reopened an assessment that was not timely
contested due to a single error by a new low-level employee.  Vulcan Electr. Serv. , 45 FMSHRC 597, 598 (July
2023).   This does not conflict with Kentucky Fuel , supra , as
an error by a new employee does not inherently reflect inadequate training. 
Regardless, as discussed above, this was not the result of a single error by a
new employee. In addition to the safety coordinator’s mistake(s), the area
manager miscalculated the filing deadline.  There is no indication that the
area manager was a new employee.

[4] The Secretary asserts
that the assumption of an August 20 deadline was unreasonable in part because
the assessment was dated (May 30, 2024) on virtually every page. We note that contest
deadlines are calculated from date of receipt, and May 30, 2024, was the date
of issuance.  However, we take the Secretary’s point that the discrepancy
between a May 30 issuance and a “late July” arrival should have given the area
manager pause.