**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).

 

 

 

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.

 

 

 

 

/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:**

 

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