**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.

 

R.E.  PIERSON MATERIALS CORP.                                             | :

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Docket  No. PENN 2022-0105

A.C.  No. 36-00111-552721

 

Docket  No. PENN 2022-0106

A.C.  No. 36-07480-551092 |
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BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

**ORDER**

 

BY THE COMMISSION:

            Thesematters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On July 19, 2022, the Commission received fromR.E. Pierson Materials Corp. (“R.E. Pierson”) two motions seeking to reopenpenalty assessments that had become final orders 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 for PENN 2022-0105 was delivered on April13, 2022, and became a final order of the Commission on May 13, 2022. MSHA alsoissued a delinquency notice to the operator on June 28, 2022. Regarding PENN2022-0106, MSHA records indicate that the proposed assessment was delivered on March18, 2022, and became a final order of the Commission on April 18, 2022. MSHAissued a delinquency notice on June 2, 2022. 

 

R.E. Pierson admits that it received theproposed assessments at issue. However, it asserts that the mine’sadministrative staff failed to forward the proposed assessments to the MineOperations Manager for review and processing, due to clerical errors inprocessing the mail. According to R.E. Pierson’s Mine Operations Manager, theoperator discovered the errors only after receiving MSHA’s delinquency notices.The operator then contacted its outside counsel to submit the motions to reopen.R.E. Pierson also asserts that it has taken corrective measures to prevent anyfuture occurrence of this error. The Secretary does not oppose the requests toreopen, but urges the operator to take steps to ensure that future penaltycontests are timely filed. 

 

 

Having reviewedR.E. Pierson’s requests and theSecretary’s responses, we find that the operator inadvertently failed toforward the contest forms to the mine’s management. In the interest of justice, we hereby reopen these matters and remand them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

 

Distribution:

 

AdeleL. Abrams, Esq.

CMSP,Law Office of Adele L. Abrams, P.C.

4740Corridor Place, Suite D

Beltsville,MD 20705

Safetylawyer@gmail.com

 

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

Nelson.April@dol.gov

 

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

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] The operatorsubmitted its motion to reopen in PENN 2022-0105 in response to theCommission’s August 31, 2023 Order to Show Cause. For the limited purpose ofaddressing these motions to reopen, we hereby consolidate docket numbers PENN2022-0105 and PENN 2022-0106 because they involve similar factual andprocedural issues. 29 C.F.R. § 2700.12.