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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

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

 

ORDER TO SHOW CAUSE

BY THE COMMISSION: 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Act”). On July 19, 2022, the Commission received from R.E. Pierson Materials 

Corp. (“R.E. Pierson”) a motion seeking to reopen the captioned case, which had become a final 

order of the Commission pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 13, 2022, and became a 

final order of the Commission on May 13, 2022. MSHA issued a delinquency notice to the 

operator on June 28, 2022. 

R.E. Pierson’s motion, filed by counsel, states that timely contest was not filed because

the operator mistakenly failed to forward the assessment to counsel’s office.1

 However, in a 

letter attached to the motion, the mine’s operations manager states that the failure to timely file 

contest “was due to a clerical issue in the cous[e]l’s office.” Ex. 1 (emphasis added). 

1 Specifically, the motion to reopen states:

The attached Letter from Mine Operations Manager . . . states

. . . due to a clerical error in their office, the proposed assessment 

was not forwarded to outside counsel along with the citations in 

time to file the contest . . . . 

The citations were later forwarded to undersigned counsel for 

review, but the proposed assessments were not included in the 

email transmission due to clerical error.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

R.E. PIERSON MATERIALS CORP.

:

: 

: 

: 

: 

: 

:

Docket No. PENN 2022-0105 

A.C. No. 36-00111-552721 

August 31, 2023
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The party seeking to reopen a final order bears the burden of showing that it is entitled to 

such relief through a detailed explanation of its failure to timely contest the penalty or answer the 

Secretary’s petition. See, e.g., Dynamic Energy, Inc., 39 FMSHRC 1560, 1561 (Aug. 2017). 

Absent further explanation, there appears to be an inconsistency between the representations 

made by counsel in the motion and the representations made by the mine’s operations manager

in the attached letter. Namely, counsel asserts that the mine operator made a mistake, while the 

mine operator asserts that the mistake occurred in counsel’s office. 

In light of the identified discrepenacy, the parties are hereby ORDERED TO SHOW 

CAUSE within 30 days of the date of this order why this proceeding should not be dismissed. In 

responding to this order, R.E. Pierson and its counsel should provide a uniform and detailed 

explanation of the failure to timely contest the proposed penalty. If no response is filed, the final 

order will not be reopened. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov