**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.

 

R.E.  PIERSON MATERIALS CORP.                                             | :

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Docket  No. PENN 2022-0105

A.C.  No. 36-00111-552721

 

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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).    

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.  

 

 

 

 

/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

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[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.