WASHINGTON, DC 20004-1710



















Docket No. YORK 2023-0032

A.C. No. 30-00983-564611[1]




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






            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). On December 28, 2022, the Commission received from Cranesville Aggregates (“Cranesville”) 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 October 11, 2022, and became a final order of the Commission on November 10, 2022. Cranesville asserts that its Safety Department was undergoing a major personnel transition when the proposed assessment was received: the safety director had semi-retired and was working from home, a new safety director had not yet been hired, and the safety manager was on leave until mid-November. As a result, the assessment did not come to the attention of the safety department until the week of November 20, at which time it was promptly contested. MSHA received the notice of contest on November 28, 2022, 18 days after the assessment became final. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.


            Having reviewed Cranesville’s request and the Secretary’s response, we find that the failure to timely contest the assessment was the result of a coincidental series of personnel issues, and therefore unlikely to recur. See River View Coal, LLC, 45 FMSHRC __ (June 2023). We also note that the operator has no history of untimely filing, filed its notice of contest promptly once it became aware of the proposed assessment, and filed its motion to reopen relatively promptly thereafter. 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





Lyndsey Gargano

EHS Director

Cranesville Block Co. Inc.

1250 Riverfront Center

Amsterdam, NY 12010



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



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



Melanie Garris


201 12th Street South, Suite 401

Arlington, VA 22202



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


[1] The Acknowledgement Letter previously issued in this docket incorrectly listed the assessment control number as 30-00983-546611.