i 

February 2023 

TABLE OF CONTENTS 

COMMISSION ORDERS 

02-10-23 IRON CUMBERLAND, LLC PENN 2022-0029 Page 87

02-10-23 SPECIALTY VERMICULITE, LLC SE 2022-0044 Page 91

02-10-23 AMBUSH MINING, INC. WEVA 2022-0089 Page 94

02-10-23 ILLER CONTRACTING SERVICES, 

INC. 

WEVA 2022-0173 Page 97

02-10-23 ROCKWELL MINING, LLC WEVA 2022-0207 Page 100

02-16-23 U.S. SILICA WEVA 2022-0157 Page 103

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-09-23 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0516 Page 107

ADMINISTRATIVE LAW JUDGE ORDERS 

02-06-23 SPARTAN MINING COMPANY, 

LLC 

WEVA 2023-0110 Page 111

02-14-23 CACTUS CANYON QUARRIES, 

INC. 

CENT 2023-0068-RM Page 114

02-14-23 MORTON SALT, INC. CENT 2023-0069 Page 118
ii 

No Review Was Granted or Denied During The Month Of 

February 2023 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 10, 2023 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket No. PENN 2022-0029 

 A.C. No. 36-05018-546442 

v. 

IRON CUMBERLAND, LLC 

 

 

 Docket No. PENN 2022-0045 

 A.C. No. 36-05018-544866 

 

 

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”).1

 On February 23 and February 25, 2022, the Commission 

received from Iron Cumberland, LLC (“Iron Cumberland”) 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). 

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). 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers PENN 2022-0029 and PENN 2022-0045, involving similar procedural issues. 29 

C.F.R. § 2700.12.

45 FMSHRC Page 87
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessments were delivered to the operator on November 12, 2021, and 

December 9, 2021. The assessments became final orders of the Commission on December 13, 

2021, and January 10, 2022. 

Iron Cumberland maintains that at the end of the 2021 year, the mine underwent new 

ownership, as well as a change to new management. The change in management included the 

hiring of a new Director of Safety in late December. This transition in leadership led to 

procedural and processing changes that resulted in the inadvertent mistake of failing to timely 

contest the proposed assessments. 

Iron Cumberland first learned of the assessments when it received the delinquency 

notices in January and February 2022. 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 in 

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

rules. 

Having reviewed Iron Cumberland’s requests and the Secretary’s responses, we find that 

due to inadvertent administrative errors resulting from changes in management at the mine, the 

operator failed to timely contest the penalty assessments. 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. 

 

45 FMSHRC Page 88
Accordingly, consistent with Rule 28, the Secretary shall file petitions 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 

 

45 FMSHRC Page 89
Distribution: 

R. Henry Moore, Esq. 

Fisher & Phillips LLP 

Six PPG Place, Suite 830 

Pittsburgh, PA 15222 

hmoore@fisherphillips.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 

45 FMSHRC Page 90
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 10, 2023 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

v. 

SPECIALTY VERMICULITE, LLC 

 Docket No. SE 2022-0044 

 A.C. No. 38-00085-546287 

 

 

 

 

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. (2012) (“Mine Act”). On January 14, 2022, the Commission received from 

Specialty Vermiculite, LLC (“Specialty”) 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 December 9, 2021. The 

assessment became a final order of the Commission on January 10, 2022. 

45 FMSHRC Page 91
Specialty states that within a month of receiving the citations in question, the Enoree 

Operations mine ceased operations on November 18, 2022, and 32 employees were laid off. 

While thirteen employees remained, only two were office staff, and five employees were 

subsequently diagnosed with COVID. The operator maintains that the cease in mine operations 

coupled with the effects of COVID resulted in confusion, uncertainty, and distraction among the 

remaining employees. Additionally, the employee responsible for contesting MSHA citations is 

not located at the Enoree mine and did not receive the assessment upon its delivery to the mine. 

When he did receive the assessment, he mistakenly believed that Specialty had time to contest 

the citations. When the employee realized his mistake, he immediately contacted counsel to file a 

motion to reopen. 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 Specialty’s request and the Secretary’s response, we find that due to an 

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 

45 FMSHRC Page 92
Distribution: 

R. Henry Moore, Esq. 

Fisher & Phillips LLP 

Six PPG Place, Suite 830 

Pittsburgh, PA 15222 

hmoore@fisherphillips.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 

45 FMSHRC Page 93
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 10, 2023 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

AMBUSH MINING, INC. 

 Docket No. WEVA 2022-0089 

 A.C. No. 46-09271-539461 

 

 

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 December 1, 2021, the Commission received from 

Ambush 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 August 12, 2021. The assessment 

became a final order of the Commission on September 13, 2021. 

45 FMSHRC Page 94
Ambush mining representative states that he personally prepared the notice of contest and 

placed it in the mail to MSHA on August 16, 2021. The contest was never received. The operator 

believes that this failure was the result of postal delays and personnel working from home due to 

the pandemic, which has affected how businesses operate and interrupted how records are 

processed and delivered. Ambush suggests that due to the large penalty amount involved, it 

always intended to contest the penalty. The operator discovered the failure when it received the 

delinquency notice dated November 23, 2021. It immediately filed a motion to reopen. 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 Ambush’s request and the Secretary’s response, we find that due to an 

administrative error, the penalty assessment was not timely contested. 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 

 

45 FMSHRC Page 95
Distribution: 

James Bowman 

P.O. BOX 99 

150 Ballard Street 

Midway, West Virginia 25878 

jimbowman61@hotmail.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 

45 FMSHRC Page 96
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 10, 2023

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

MILLER CONTRACTING SERVICES, INC. 

 Docket No. WEVA 2022-0173 

 A.C. No. 46-04168-542650 

 

 

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 January 28, 2022, the Commission received from Miller 

Contracting Services, Inc. (“Miller”) 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 October 4, 2021. The assessment 

became a final order of the Commission on November 3, 2021. 

45 FMSHRC Page 97
On October 15, 2021, MSHA received a partial payment from the operator. Miller asserts 

that it also mailed its notice of contest packet on October 14, 2021. On January 22, 2022, Miller 

received a notice of delinquent payment and realized that MSHA had not received its contest. 

The operator believes that due to an internal miscommunication, its notice of contest was not 

mailed via certified mail, which resulted in the contest being lost in the mail. Miller states that it 

has updated its procedures to ensure that future contests are sent out using certified mail. 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 Miller’s request and the Secretary’s response, we find that due to an 

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 

 

45 FMSHRC Page 98
Distribution: 

Ray Boon 

Miller Contracting Services, Inc. 

5905 Walnut Grove Rd. 

Carrier Mills, IL 62917 

ray@millercontracting.us 

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 

45 FMSHRC Page 99
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 10, 2023 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

ROCKWELL MINING, LLC 

 Docket No. WEVA 2022-0207 

 A.C. No. 46-09377-544606 

 

 

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 22, 2022, the Commission received from 

Rockwell Mining, LLC (“Rockwell”) 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 13, 2021. The 

assessment became a final order of the Commission on December 13, 2021. 

45 FMSHRC Page 100
Rockwell asserts that a new office manager receptionist received the assessment on 

November 15, 2021, but the receptionist did not provide it to the Corporate Safety Director until 

February 2, 2022. Rockwell states that proposed assessments are supposed to be scanned and 

directed to the company’s Corporate Safety Director. It further asserts that the employee has 

been trained in the correct procedures going forward. 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 Rockwell’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 

 

45 FMSHRC Page 101
Distribution: 

Colton C. Parsons, Esq. 

Steptoe & Johnson PLLC 

707 Virginia Street East, Chase Tower 

17th Floor, Charleston, WV 25301 

Colton.Parsons@steptoe-johnson.com 

Jonathan R. Ellis, Esq. 

707 Virginia Street East, Chase Tower 

17th Floor, Charleston, WV 25301 

Jonathan.Ellis@steptoe-johnson.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 

45 FMSHRC Page 102
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

February 16, 2023 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

U.S. SILICA 

 Docket No. WEVA 2022-0157 

 A.C. No. 26-00680-544985 

 

 

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. 

45 FMSHRC Page 103
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 

 

45 FMSHRC Page 104
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 

45 FMSHRC Page 105

ADMINISTRATIVE LAW JUDGE DECISIONS
45 FMSHRC Page 106
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

February 9, 2023 

ORDER TO VACATE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Sullivan 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to Approve 

Settlement and has set forth the factual basis for the proposed modifications. The Respondent has 

agreed to the proposed changes. The originally assessed amount for the citations at issue was 

$18,550.00 and the proposed settlement amount is $11,000.00. 

The proposed settlement includes: 

Citation/ 

Order No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

9565168 $ 518.00 $ 518.00 No change. 

9565170 $ 234.00 $ 234.00 No change. 

9565171 $ 378.00 $ 378.00 No change. 

9565172 $ 1,285.00 $ 800.00 Vacate 104(b) order and modify negligence 

from “Low” to “None” 

9565173 $ 7,473.00 $ 4,000.00 Vacate 104(b) order 

9565177 $ 2,077.00 $ 1,000.00 Vacate 104(b) order and modify negligence 

from “Low” to “None” 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

APPALACHIAN RESOURCE WEST 

 VIRGINIA, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

 Docket No. WEVA 2022-0516 

 A.C. No. 46-08930-558400 

 Mine: Grapevine South Surface Mine 

45 FMSHRC Page 107
9565178 $ 234.00 $ 234.00 No change. 

9565179 $ 198.00 $ 198.00 No change. 

9565180 $ 133.00 $ 133.00 No change. 

9565181 $ 1,869.00 $ 934.00 Modify negligence from “Low” to “None” 

9565182 $ 234.00 $ 234.00 No change. 

9565183 $ 3,022.00 $ 1,442.00 Modify gravity from “Reasonably Likely” 

to “Unlikely” and remove S&S designation

9565184 $ 234.00 $ 234.00 No change. 

9565185 $ 661.00 $ 661.00 No change. 

Total $ 18,550.00 $ 11,000.00 

This case involves fourteen citations. Three of these citations have associated withdrawal 

orders issued pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 814(b). The Secretary’s 

motion seeks the vacatur of all three 104(b) orders. Two of these orders—Orders Nos. 9565191 

and 9565192, associated with Citations Nos. 9565172 and 9565173, respectively—were included 

in the Secretary’s petition in this case. The third 104(b) order, which accompanies Citation No. 

9565177, was missing from the penalty petition. Because I highly doubted that there is any basis 

upon which I could approve a settlement motion specifying vacatur of an order I had never seen, 

by e-mail dated January 25, 2023, my law clerk requested that the Secretary provide a copy of 

the third order to correct the omission in the docket. 

In a February 8, 2023 filing in response, the Secretary refused to do so, perhaps 

motivated by pending litigation in Perry County Resources, LLC, Docket No. KENT 2022-0024. 

See ALJ Order Denying Sec’y’s Settlement Mot. and Sec’y’s Mot. to Certify for Interlocutory 

Review (Oct. 5, 2022); Commission Order (Dec. 6, 2022) (granting interlocutory review). The 

motion for settlement here, by specifically including vacatur of associated 104(b) orders, greatly 

distinguishes this docket from the Perry County case. Fortunately, the Respondent quickly 

stepped forward to forestall further needless delay by providing a copy of the missing Order, No. 

9567104, for the record in the case. 

After reviewing the motion and the relevant 104(b) orders, I find that the Secretary has 

set forth the justification for the proposed modifications. As required by the Mine Act, I have 

reviewed the motion and penalty criteria and evaluated the proposed settlement pursuant to the 

requirements set forth in Sections 110(i) and 110(k). The parties agree to the size of this 

operator, good faith abatement, and the ability to pay. The history of violations has been 

considered. The negligence and gravity of the violations are addressed in the motion, in the 

citation, and in the file in general. 

I accept the representations and modifications of the Secretary as set forth in the motion 

to approve settlement. I have considered the representations and documentation submitted, find 

that the modifications are reasonable, and conclude that the proposed settlement is appropriate 

under the criteria set forth in Section 110(i) of the Act. Accordingly, Orders Nos. 9565191, 

9565192, and 9567104 are VACATED and the motion to approve settlement is GRANTED. 

45 FMSHRC Page 108
It is ORDERED that the negligence for Citations Nos. 9565172, 9565177, and 9565181 

be MODIFIED from “Low” to “None.” 

It is ORDERED that the gravity for Citation No. 9565183 be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and that the S&S designation be removed. 

It is further ORDERED that the Respondent pay the Secretary of Labor the sum of 

$11,000.00 within 30 days of the date of this Decision.1

/s/ John T. Sullivan 

John T. Sullivan 

Administrative Law Judge 

Distribution: 

Karen M. Barefield, Esq., Office of the Solicitor, Regional Solicitor Office, 201 12th Street South, 

Suite 401 Arlington VA 22202-5450 (Barefield.karen@dol.gov) 

K. Brad Oakley, JACKSON KELLY PLLC, 100 W. Main Street, Suite 700, Lexington, KY 40507

(kboakley@jacksonkelly.com)

1

 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

45 FMSHRC Page 109

ADMINISTRATIVE LAW JUDGE ORDERS
45 FMSHRC Page 110
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE. NW, SUITE 520N 

TELEPHONE: (202)434-9958 / FAX: (202)434-9949 

February 6. 2023 

ORDER OF TEMPORARY REINSTATEMENT

Before: Judge Sullivan 

Pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 

(“Act”), 30 U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, on December 19, 2022, the 

Secretary of Labor (“Secretary”) filed an Application for Temporary Reinstatement of miner 

Robert M. Carlucci (“Complainant”) to his former position with Spartan Mining Company, 

LLC (“Respondent”) at its Road Fork No. 52 Mine. The application’s certificate of service 

states that it was served on Respondent by electronic mail that same day, and otherwise satisfies 

the procedural requirements of Commission Procedural Rule 45(b) in that, among other things, 

it timely “states the Secretary’s finding that the miner’s discrimination complaint was not 

frivolously brought[,] accompanied by an affidavit setting forth the Secretary’s reasons 

supporting his finding[,] and includes a copy of the miner’s complaint to the Secretary . . . .” 29 

C.F.R. § 2700.45(b).1

According to Commission Rule 45(c), a request for hearing must be filed within 10 days 

following a respondent’s receipt of the Secretary’s application for temporary reinstatement. 29 

C.F.R. § 2700.45(c). Respondent here filed no such request by the December 29, 2022 due date.

Rather, upon assignment of this matter to the undersigned on January 5, 2023, the parties

requested time in which to negotiate and submit an agreement under which the Complainant

would receive economic reinstatement in lieu of immediately returning to work for Respondent.

On February 3, 2023, the Temporary Economic Reinstatement Agreement (“Agreement”),

signed by the Complainant and representatives of the Secretary and the Respondent, was

submitted in this case.

1

 The Discrimination Complaint (“Complaint”) filed with the Secretary’s Mine Safety 

and Health Administration by the Complainant is dated October 31, 2022, thus well within 60 

days of the Complainant’s October 18 termination of employment. See 30 U.S.C. § 815(c)(2). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of ROBERT M. CARLUCCI, 

 Complainant, 

v. 

SPARTAN MINING COMPANY, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEVA 2023-0110 

MSHA Case No. PINE-CD 2023-01 

Mine: Road Fork No. 52 

Mine ID: 46-09522 

45 FMSHRC Page 111
 Despite the lack of a request for a hearing and the filing of the Agreement, I am required 

to review the contents of the Secretary’s application to determine whether the complaint in this 

instance “was not frivolously brought.” 29 C.F.R. § 2700.45(c). 

Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any 

miner . . . because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator . . . of an alleged danger or safety or health violation 

in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In the Application, as supported by his investigator’s 

affidavit, the Secretary alleges the following to establish the Complaint as having been not 

frivolously brought under section 105(c)(1) & (2): 

(1) After working at the mine for approximately 13 months at various positions, including 

roof bolter, the Complainant, during his October 18, 2022 shift, took a shuttle car out of 

service due to its brakes failing during his operation of it, and notified mine management; 

(2) Respondent’s agents immediately took issue with Complainant’s actions, including 

Section Foreman Dale Gibson telling Complainant that he would permit him to only 

“operate a shovel” on the section. After Complainant asked for a ride to the surface to 

speak with the safety department or mine superintendent about these matters, on the way 

out of the mine Evening Shift Foreman Dickie Lester informed him that his leaving the 

mine would be considered tantamount to quitting his job there. 

(3) Upon Complainant’s arrival at work the following day, Safety Manager Scott Toler 

informed him that Respondent considered his traveling to the surface the prior day as a 

termination of his employment. 

The Respondent having not opposed the Application, I agree with the Secretary that it 

establishes the Complaint to have been “not frivolously brought” in this instance. See Jim 

Walters Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (relying upon Mine Act 

legislative history and the Supreme Court’s treatment of a similar whistleblower protection 

provision to conclude that the “not frivolously brought” standard is the equivalent of a 

“reasonable cause to believe” standard and is met when a miner’s “complaint appears to have 

merit”). 

In addition, I have reviewed the terms of the Agreement and find that they do not appear 

to reduce Complainant’s rights under section 105(c)(2). The Agreement shall remain on file in 

this proceeding. I reach no conclusion beyond that regarding the merits of the Complaint. 

WHEREFORE, the Application is GRANTED, and it is ORDERED that reinstatement shall 

remain in effect until such time that the Secretary provides notification that he will not be 

 

45 FMSHRC Page 112
bringing a discrimination case in chief on behalf of the Complainant,2

 or such a case is brought 

and there is a final determination on it by decision, approval of settlement, or other order of this 

court or the Commission. I retain jurisdiction over this temporary reinstatement proceeding for 

such purposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4). 

 /s/ John T. Sullivan 

John T. Sullivan 

 Administrative Law Judge 

Distribution: 

Karen Barefield, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South-Suite 

401, Arlington, Virginia 22202-5450 (barefield.karen@dol.gov) 

Jonathan R. Ellis, Steptoe & Johnson, PLLC, P.O. Box 1588, Charleston, WV 25326 

(Jonathan.Ellis@Steptoe-Johnson.com) 

Robert Carlucci, PO Box 421, Matheny, West Virginia 24860 

2

 Section 105(c)(3) of the Act directs the Secretary to notify a complainant whether a 

section 105(c) violation occurred within 90 days of the filing of a complaint, which in this 

instance would have been no later than Monday, January 30, 2023. 30 U.S.C. § 815(c)(3). The 

Secretary’s representative is hereby ORDERED to provide an update regarding the status of the 

Secretary’s investigation of the Complaint no later than seven days from the date of this Order. 

45 FMSHRC Page 113
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, D.C. 20004 

February 14, 2023 

CACTUS CANYON QUARRIES, INC. CONTEST PROCEEDING 

 Contestant, 

 v. 

 Docket No. CENT 2023-0068-RM 

 E-Document No. 3122645; 08/11/2022 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

 

 

 Fairland Plant & Qys 

 Mine ID 41-00009 

 

 

ORDER OF DISMISSAL 

 This case involves a mine operator in Texas seeking an order from the Commission that 

would force MSHA to act on its applications for mine identification numbers (“Mine IDs”). The 

Secretary of Labor argues that the Commission lacks jurisdiction. After my consideration of the 

entire record, I agree with the Secretary that I have no jurisdiction over this matter. 

Procedural Background 

This matter is before me after Cactus Canyon Quarries, Inc. (“CCQI”) through counsel 

filed a document on November 15, 2022, with the caption “Civil Proceeding to Perform 

Ministerial Act of Assigning Mine ID” and titled “Contest Proceeding, 30 U.S.C. § 815(d), 

29 C.F.R. § 2700.20.” In its filing CCQI argues that MSHA failed to assign Mine IDs for several 

of CCQI’s intermittent surface mines, and thus CCQI petitions the Commission to require 

MSHA “to perform the ministerial act of assigning a mine ID to the 10 captioned min[e]s as 

required by 30 U.S.C. § 803 and MSHA Form 7000-51.” (Doc. at 1–2.) CCQI attached four 

exhibits which contain correspondence with MSHA and copies of forms it submitted to MSHA 

requesting Mine IDs. (Doc., Exs. 1–4.) 

The Commission’s docket office processed the document as a contest proceeding under 

section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815, 

and assigned the matter a docket number on January 5, 2023. Thereafter, the Secretary of Labor 

filed his Motion to Dismiss on January 12, 2023, claiming the Commission should dismiss this 

case for lack of jurisdiction. (Mot. at 1.) Specifically, the Secretary argues that “[n]othing in the 

Mine Act gives the Commission . . . authority to compel MSHA to issue Mine IDs,” and that the 

Commission is not a court of general jurisdiction. (Mot. at 2.) Thereafter, on January 13, 2023, 

Chief Administrative Law Judge Glynn F. Voisin assigned me this docket. 

On January 18, 2023, the Operator filed a document titled “Supplement to Contest 

Proceeding, 30 U.S.C. § 815(d), 29 C.F.R. § 2700.20, Notice of Inaccurate and Misleading 

Caption,” which was not a direct response to the Secretary’s motion but an attempt by CCQI to 

provide additional information and grounds regarding its initial filing by attaching five additional 

exhibits including emails and other correspondence. (Suppl. Doc., Exs. 5–9.) Nevertheless, I 

45 FMSHRC Page 114
waited ten days for the operator to file a formal response to the Secretary’s motion per 

Commission Procedural Rule 10, 29 C.F.R. § 2700.10, but received nothing further. 

Jurisdiction Under the Mine Act 

Although CCQI titles both its initial filing and its supplemental filing a “Contest 

Proceeding,” neither filing is a contest of any citation or order issued by MSHA under section 

104 of the Mine Act, 30 U.S.C. § 814. Indeed, Commission Procedural Rule 20 is titled “Notice 

of contest of a citation or order issued under section 104 of the Act” and specifically lists what 

mine operators may contest before the Commission. Under Commission Procedural Rule 

20(a)(1)— 

(1) An operator may contest: 

(i) A citation or an order issued under section 104 of the 

Act, 30 U.S.C. 814; 

(ii) A modification of a citation or an order issued under 

section 104 of the Act; and 

(iii) The reasonableness of the length of time fixed for 

abatement in a citation or modification thereof issued under 

section 104 of the Act. 

29 C.F.R. § 2700.20(a)(1). The Commission’s rule tracks with section 105(d) of the Mine Act 

noting, in relevant part, those matters that may come before the Commission: 

If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance 

or modification of an order issued under section 814 of this title, or 

citation or a notification of proposed assessment of a penalty 

issued under subsection (a) or (b) of this section, or the 

reasonableness of the length of abatement time fixed in a citation 

or modification thereof issued under section 814 of this title, . . . 

the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for a 

hearing . . . . 

30 U.S.C. § 805(d). Though not applicable in this case, section 105(c) gives Commission Judges 

jurisdiction over claims of discrimination and interference, and section 107(e) gives operators an 

opportunity for a hearing to contest imminent danger orders. 30 U.S.C. §§ 815(c), 817(e). 

Analysis 

 Both CCQI’s initial and supplemental filings list ten electronic document numbers 

generated by MSHA whenever a mine operator electronically submits Form 7000-51 to request a 

Mine ID. In the caption of its filings, CCQI lists the document numbers of the ten named mines 

for which it seeks (or previously sought) Mine IDs. Only one of the ten listed mines received a 

Mine ID. (Suppl. Doc. at 4.) In neither filing does CCQI contest a citation or order issued by 

45 FMSHRC Page 115
MSHA under section 104. Neither does CCQI contest a modification or the time for abatement 

of a citation or order issued under section 104. Section 104, 30 U.S.C. § 814, refers to citations 

or orders issued by an authorized representative (“AR”) of the Secretary (MSHA inspector) to 

mine operators for violations of mandatory health or safety standards. CCQI’s claims regarding 

the approval of Mine IDs do not entail the issuance of a citation or order for violations of 

mandatory health or safety standards, and thus do not come under this section of the Mine Act. 

Indeed, CCQI cites to no case law to support its contention. Therefore, I determine CCQI has not 

brought a valid notice of contest under Commission Procedural Rule 20, 29 C.F.R. § 2700.20, or 

section 105(d) of the Mine Act, 30 U.S.C. § 815(d).1 

Moreover, CCQI’s arguments and citations to the Mine Act are confusing and misplaced. 

In its supplemental submission CCQI attempts to justify its filings with the Commission by 

citing the entire Mine Act “including without limitation §802, §803, §815(d), and §823(d).” 

(Suppl. Doc. at 1.) Despite this broad approach, CCQI fails to cite to any provision in the Mine 

Act that would give the Commission jurisdiction to hear a matter involving the issuance of Mine 

IDs. For instance, section 3 of the Mine Act, 30 U.S.C. § 802, is simply a list of statutory 

definitions and section 4, 30 U.S.C. § 803, refers to mines subject to the Mine Act. As discussed 

above, section 105(d), 30 U.S.C. § 815(d), does not confer jurisdiction over matters of issuing 

Mine IDs but refers to contests of citations and orders issued to mine operators for violations of 

safety and health standards. Finally, section 113, 30 U.S.C. § 823(d), simply discusses the 

structure of the Commission and the role of its administrative law judges and does not confer 

general jurisdiction to hear any matter related to the Mine Act. None of the sections of the Mine 

Act specifically cited by CCQI confer jurisdiction on me to hear matters involving Mine IDs, and 

I am unaware of any other sections that would do so. Nor can CCQI point to any of the 

Commission’s procedural rules that would provide an avenue for instituting such a proceeding. 

 Consequently, I must address the Secretary’s motion to dismiss for lack of jurisdiction. 

Commission Procedural Rule 1(b) states: “On any procedural question not regulated by the Act, 

these Procedural Rules, or the Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), 

the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil 

Procedure and the Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b). Here, I am 

guided by Rule 12(b)(1) of the Federal Rules of Civil Procedure on motions to dismiss for lack 

of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Because I conclude that I do not have 

subject matter jurisdiction to review CCQI’s matter involving the issuance of Mine IDs, this case 

must be dismissed. See Star Mine Operations, LLC, 36 FMSHRC 3326, 3327 (Dec. 2014) (ALJ) 

(dismissing a case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter 

jurisdiction). 

1

 In its supplemental submission, CCQI attaches a copy of Citation No. 9678444 issued 

on October 26, 2022, to CCQI at Fairland Plant & Qys (Mine ID 41-00009), and correspondence 

with MSHA about the non-issuance of Mine IDs to CCQI. (Suppl. Doc., Ex. 8.) Under 

Commission Procedural Rule 20(b), an operator must file a contest of a citation within thirty 

days of issuance of the citation. 29 C.F.R. § 2700.20(b). CCQI did not formally contest this 

citation. Yet, even if I were to construe the supplemental submission as the contest of a citation 

issued under section 104, CCQI failed to submit a contest of Citation No. 9678444 within thirty 

days of its issuance on October 26, 2022, and as such it would be dismissed as untimely. 

45 FMSHRC Page 116
WHEREFORE, it is hereby ORDERED that Docket No. CENT 2023-0068-RM is 

DISMISSED with prejudice for lack of subject matter jurisdiction. 

s/ Alan G. Paez 

 Alan G. Paez 

 Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Mail) 

Andy Carson, Esq., Cactus Canyon Quarries Inc., 7232 CR 120, Marble Falls, TX 78654 

(acarsonmarblefalls@aol.com) 

Emily Toler Scott, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th Street 

South, Suite 401 Arlington, VA 22202 

(scott.emily.t@dol.gov) 

45 FMSHRC Page 117
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

February 14, 2023 

MORTON SALT, INC., 

 Contestant, 

 v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

 Respondent. 

 CONTEST PROCEEDINGS 

Docket No. CENT 2023-0069 

POV Notice 9679401; 12/01/2022 

Docket No. CENT 2023-0070 

Order No. 9673196; 12/12/2022 

Docket No. CENT 2023-0071 

Order No. 9674873; 12/07/2022 

Docket No. CENT 2023-0072 

Order No. 9674876; 12/12/2022 

Docket No. CENT 2023-0073 

Order No. 9674877; 12/12/2022 

Docket No. CENT 2023-0074 

Order No. 9674883; 12/14/2022 

Docket No. CENT 2023-0075 

Order No. 9674887; 12/14/2022 

Docket No. CENT 2023-0076 

Order No. 9674888; 12/20/2022 

Docket No. CENT 2023-0077 

Order No. 9674891; 12/20/2022 

Docket No. CENT 2023-0078 

Order No. 9674895; 12/28/2022 

Mine: Weeks Island Mine and Mill 

Mine ID: 16-00970 

45 FMSHRC Page 118
ORDER GRANTING IN PART SECRETARY OF LABOR’S 

MOTION TO DISMISS CONTEST TO POV NOTICE 

ORDER OF DISMISSAL 

Before: Judge Simonton 

These cases are before me upon notices of contest filed by Morton Salt Inc. (“Morton”) 

under Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 

U.S.C. § 801 et seq. Docket No. CENT 2023-0069 was assigned by the Commission’s docket 

office to a contest of a Pattern of Violations (POV) Notice, which was issued by MSHA on 

December 1, 2022.1 Notably, however, Morton did not contest the POV Notice itself. Instead, it 

contested nine Section 104(e) withdrawal orders issued following the POV Notice and simply 

referenced the POV Notice, No. 9679401, in each of those notices of contest.2 See, e.g., Notice 

of Contest, CENT 2023-0070. Accordingly, it appears that Docket No. CENT 2023-0069 may 

have been created in error. 

On January 24, 2023, the Secretary moved to dismiss CENT 2023-0069 and to strike any 

reference to Morton’s contest of the POV Notice in each 104(e) Notice of Contest filed in 

Docket Nos. CENT 2023-0070, CENT 2023-0071, CENT 2023-0072, CENT 2023-0073, CENT 

2023-0074, CENT 2023-0075, CENT 2023-0076, CENT 2023-0077, and CENT 2023-0078. The 

Secretary argues that the Federal Mine Safety and Health Review Commission lacks jurisdiction 

over a contest to a POV Notice pursuant to the Commission’s holding in Pocahontas Coal Co., 

LLC, 38 FMSHRC 176 (Feb. 2016). Sec’y of Labor’s Mot. to Dismiss Contest to POV Notice at 

2. According to the Secretary, Morton cannot establish the Commission’s jurisdiction over its 

contest of the POV Notice. Id. at 4. 

Morton filed a Statement in Opposition to the Secretary’s Motion to Dismiss on February 

3, 2023. In its statement, Morton confirms that it “did not file a Notice of Contest to the POV 

Notice; it did not directly challenge or contest the POV notice.” Contestant’s Statement in Opp’n 

to Sec’y of Labor’s Mot. to Dismiss Contest to POV Notice at 2. Morton argues that the POV 

notice, since it is joined by the nine Section 104(e) withdrawal orders MSHA issued after the 

POV Notice, does not stand alone. Id. Morton asserts that because it is indirectly challenging the 

POV Notice by contesting the withdrawal orders, the court does not need to dismiss Docket No. 

1

 If an operator has a patten a pattern of violations of mandatory health or safety 

standards that could significantly and substantially contribute to the cause and effect of coal or 

other mine health or safety standards, Section 104(e)(1) of the Mine Act directs MSHA to issue a 

notice of such pattern to the operator. 30 U.S.C. § 814(e)(1). If any inspection within 90 days 

following the notice reveals a significant and substantial violation of a mandatory health or 

safety standard, MSHA must issue a withdrawal order. Id. Section 104(e) also provides for 

MSHA’s issuance of additional withdrawal orders for subsequent significant and substantial 

violations discovered until an inspection of the entire mine reveals no significant and substantial 

violations of mandatory health or safety standards. Id. § 814(e)(2)-(3). 

2 The contest cases, Docket Nos. CENT 2023-0070 through CENT 2023-0078, were 

assigned to me alongside Docket No. CENT 2023-0069. 

45 FMSHRC Page 119
CENT 2023-0069 but should instead consolidate it with the contests of the nine Section 104(e) 

withdrawal orders and issue an order confirming that Morton seeks review of the POV Notice 

during the contest of those orders. Id. at 3-5. 

In Pocahontas Coal Co., LLC, the Commission held that “the language of section 105(d) 

does not give the Commission authority to review a direct challenge to a POV notice.” 38 

FMSHRC 176 at 182. However, an operator may obtain Commission review of a POV notice 

during a contest of a related withdrawal order issued under Section 104(e). Id. at 184. 

Accordingly, Morton will be able to challenge the validity of the POV Notice during the contest 

proceedings for the nine dockets challenging the Section 104(e) withdrawal orders. I thus see no 

legitimate reason to grant the portion of the Secretary’s motion that requests the court strike any 

reference to Morton’s contest of the POV Notice in the Notices of Contest in Docket Nos. CENT 

2023-0070 through CENT 2023-0078. I do find, however, that dismissal of Docket No. CENT 

2023-0069 is appropriate. Both parties recognize that the Commission does not have jurisdiction 

to review a POV notice standing alone, and, procedurally, it stands alone in Docket No. CENT 

2023-0069. It is properly challenged indirectly in Docket Nos. CENT 2023-0070 through CENT 

2023-0078 and I will hear arguments about its validity in those proceedings. 

Accordingly, the Secretary’s Motion to Dismiss Contest to POV Notice is hereby 

GRANTED IN PART. It is ORDERED that Docket No. CENT 2023-0069 is DISMISSED. 

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

45 FMSHRC Page 120
Distribution: (Electronic and Certified Mail) 

Brian Hendrix, Husch Blackwell LLP, 1801 Pennsylvania Avenue, NW, Suite 1000, 

Washington, D.C. 20006, brian.hendrix@huschblackwell.com 

Donna Pryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202, 

Donna.pryor@huschblackwell.com 

Mia F. Terrell, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 

501, Dallas, TX 75202, terrell.mia@dol.gov 

 

Tyler Nash, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 501, 

Dallas, TX 75202, nash.william.t@dol.gov 

Josh Bernstein, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 

501, Dallas, TX 75202, bernstein.josh@dol.gov 

 

45 FMSHRC Page 121