Secretary of Labor v. Bourbeau Aggregate, LLC

Plain-English summary

Bourbeau received a proposed assessment but sent a conference request through a trade association instead of filing the required penalty contest. It waited for an MSHA response and sought reopening after a Treasury collection letter arrived. The Commission majority held that the motion did not explain why the clear contest instructions were disregarded or account for the delay after MSHA mailed a delinquency notice. It denied reopening despite the Secretary's lack of opposition. The Chair dissented, reasoning that the company showed an intent to contest and moved within six days of the first notice it said it actually received.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: Requesting an MSHA conference does not replace a penalty contest, and a reopening motion must explain both the original mistake and any delay after delinquency notice.

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.
BOURBEAU AGGREGATE, LLC |
|
|
Docket No. YORK 2025-0059 A.C. No. 43-00585-607555
|

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

ORDER

BY: 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 April 1, 2025, the Commission received from Bourbeau Aggregate, LLC (“Bourbeau”)
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 on October 24, 2024, the U.S. Postal Service attempted service of the proposed assessment at the operator’s address of record. The postal service left a notice at the address because there was no one on premises authorized to sign for receipt of the assessment. On October 28, 2024, the assessment was picked up at a local post office by the operator. On November 27, 2024, the proposed assessment became a final order of the Commission.

MSHA mailed a delinquency notice to the operator on January 13, 2025. Secy’s Resp. at 1. On March 26, 2025, the operator received a collections letter from the Department of Treasury. MTR at 1. A week later, on April 1, 2025, the operator filed its request to reopen. The Secretary does not oppose the request to reopen.

The operator claims that, through the
assistance of a state trade association, it mailed a conference request[1]
to a local MSHA office regarding the citations at issue, but that its
conference request failed to make it to its intended recipient. Bourbeau states
that it continued to wait for MSHA’s response to its conference request until
receiving the collections letter from the Department of Treasury.

• *

It is uncontroverted that Bourbeau received
the proposed assessment on October 28, 2024. Along with the proposed
assessment, the Secretary includes a document titled “Notice of Contest Rights
and Instructions” which clearly set out the procedures for contesting a
citation. The notice expressly warns operators that “[t]he fact that you may be
negotiating a settlement with MSHA regarding these penalties. . . does not
relive you of the obligation to fill out and submit this form to notify MSHA”
of the operator’s intent to contest the penalties. Sec’y Resp. at 7. Although
implying a familiarity with the penalty contest procedures, Bourbeau’s motion
fails to explain why it disregarded MSHA’s instructions and failed to file a
timely notice of contest. See Heritage Coal & Natural Res., LLC, 31
FMSHRC 1009, 1011 fn.1 (Sept. 2009) (denying a motion to reopen where the
operator failed to explain how the “problem involving a conference request
prevented it from responding within the time limits provided in the Mine Act.”).

Furthermore, the operator fails to explain
why it took nearly three months to file a Motion to Reopen. See, e.g.,
Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining
Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen
filed more than 30 days after receipt of notice of delinquency must explain the
reasons why the operator waited to file a reopening request, and lack of
explanation is grounds for the Commission to deny the motion).

• *

Having reviewed Bourbeau’s motion and the
Secretary’s response, we conclude that the operator failed to provide a
detailed explanation of its failure to timely contest the penalty. “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….” Lone Mountain, 35 FMSHRC 3342,
3345 (Nov. 2013) (citing Higgins Stone Co., 32 FMSHRC 33, 34 (Jan.
2010)); Panther Creek Mining, LLC, 46 FMSHRC 9, 10 (Jan. 2024).

In the instant matter, the operator has failed to establish good cause for reopening the above-referenced case. Accordingly, Bourbeau’s motion to reopen is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring:

I write to agree with Commissioners Jordan and Baker 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 my colleagues recount, the Commission’s order became final under the language of section 105(a). My colleagues deny reopening in their 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 my colleagues in denying reopening in this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Chair
Rajkovich, dissenting:

I would find that Bourbeau
Aggregate, LLC has provided adequate justification for relief. The operator
explains that it failed to file a timely notice of contest because it was
waiting for MSHA’s response to its request for a conference, indicating both an
intent to contest and a misunderstanding of the contest process. The Commission
has previously granted motions to reopen on similar grounds. E.g., Nat’l Lime and
Stone Co.,
48 FMSHRC __, Docket No. LAKE 2025-0237 (Jan. 5, 2026) (reopening where the
operator mistakenly believed submitting a conference request constituted a
contest); Explosive Contractors, Inc., 46 FMSHRC 965, 966-67 (Dec. 2024)
(reopening where the operator had waited for MSHA’s reply to its conference
request); Washington Cty. Aggregates, Inc., 44 FMSHRC 590, 591 (Aug.
2022) (reopening where the operator mistakenly believed submitting a conference
request started the contest process).

Additionally,
I would find that the motion to reopen was filed within a reasonable amount of
time. A motion is presumptively filed within a reasonable amount of time if the
Commission receives it within 30 days of the operator’s first notice that it
has failed to timely file a notice of contest. Highland Mining Co., 31
FMSHRC 1313, 1316-17 (Nov. 2009). Here, Bourbeau explains that it first learned
it had failed to timely contest the assessment on March 26, 2025, when it
received a collections letter from the Department of the Treasury.[2]
The operator moved to reopen six days later.

I would grant this unopposed motion and remand
this matter 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.

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

Distribution:

Ben Osha obo Bourbeau Aggregate, LLC

1 Graves Street

P.O. Box 750

Montpelier, VT 05601-0750

[email protected]

Alexandra J. Gilewicz, 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]

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 Judge Michael G. Young

Office of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[1] Although there
was a copy of the conference request in the record, the copy lacks any date to
indicate when it was mailed. MTR at 11.

[2] The majority
notes that Bourbeau failed to explain the three-month delay in filing its
motion following the delinquency letter that was mailed to the operator on
January 13, 2025. However, the record suggests that Bourbeau did not receive
the January letter. The operator makes no mention of the letter (instead
identifying the March collections letter as the first time it was made aware of
the untimely contest) and the Secretary has not provided proof of delivery. A
letter of which Bourbeau was unaware cannot serve as the operator’s
first notice of the issue, and the operator naturally cannot explain why it
failed to timely react to such a letter.