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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) :

 : 

 v. : Docket No. WEST 2022-0157 

 : A.C. No. 26-00680-544985 

U.S. SILICA : 

 

 

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2018) (“Mine Act”). On February 23, 2022, the Commission received 

from U.S. Silica 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), 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). 

February 16, 2023
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The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates

that the proposed assessment was delivered to the operator on November 19, 2021. The 

assessment became a final order of the Commission on December 20, 2021. 

U.S. Silica asserts that due to operations and staff changes, the assessment was 

improperly handled. Specifically, once the assessment was received at the correct company 

office, a new administrative assistant, unaware of the proper procedure, mistakenly sent the 

assessment to an interim manager at another office. The operator discovered the assessment on 

January 31, 2022, and immediately filed a contest. 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

in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural 

rules.

Having reviewed U.S. Silica’s request and the Secretary’s response, we find that due to 

an inadvertent administrative error, the operator failed to timely contest the penalty assessment.

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.

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution: 

Michael Peelish, Esq.

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

4740 Corridor Place, Suite D

Beltsville, MD 20705

mpeelish@aabramslaw.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