FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
BOURBEAU AGGREGATE, LLC |
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Docket No. YORK 2025-0059 A.C. No. 43-00585-607555
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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
Ben@agcvt.org
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
Gilewicz.Alexandra.J@dol.gov
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
Paige.Thomas.A@dol.gov
Melanie
Garris
US
Department of Labor/MSHA
Office of Assessments, Room N3454
200 Constitution Ave NW
Washington, DC 20210
Garris.Melanie@dol.gov
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.