Secretary of Labor v. U.S. Silica

Plain-English summary

U.S. Silica plausibly explained that it believed a departing safety manager had timely contested the assessment and later received confusing MSHA billing information. The company learned of the default from a December 2019 delinquency notice but did not move to reopen until nearly three months later. The Commission found that the operator had not explained that later delay, even though its account of the original missed contest was supported. It ordered U.S. Silica to provide a reasonable explanation within 20 days or face dismissal with prejudice and payment of the outstanding penalties.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. § 2700.1(b)
• Outcome: U.S. Silica was ordered to show cause within 20 days why reopening should not be denied.
• Key point: An operator seeking reopening must explain both the original default and any delay after learning that the assessment became final.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA)            

v.

U.S. SILICA

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Docket No. WEVA 2020-0270

A.C. No. 46-02805-499009

BEFORE:  Rajkovich, Chairman; Althen
and Traynor, Commissioners

ORDER

BY Rajkovich, Chairman, and Traynor, Commissioner:

This matter arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2012) (“Mine Act”). On February 25, 2020, 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)
of the Mine Act, 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).

Records of the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate
that the proposed assessment was delivered on September 16, 2019, and became a
final order of the Commission on October 17, 2019. U.S. Silica asserts that its
failure was the result of a confusing set of circumstances. [1]
The affidavit of the plant manager says that the plant’s safety manager left
the company on November 1, and that the plant had instructed him to contest the
penalties in this matter when the proposed assessment was received in September,
2019. The affidavit further says that it assumed that the contest had been
timely submitted before the safety manager left his job at the plant. Sometime
later, the motion contends that the operator received confusing and inaccurate
billing and payment statements from MSHA, and was working with the agency to
correct those.

The affidavit states
that the operator was unaware that the contest may not have been timely filed
until it received a delinquency notice, which was mailed on December 2, 2019. The
motion states that it made a check request to pay the outstanding balance MSHA
claimed was due, and that it calculated the penalties due for the citations it
did not wish to contest. The motion includes a copy of the contest form with
the citations checked. However, the motion concedes that it does not appear
that the contest form was filled out and submitted with the payment of
uncontested penalties. [2]
The affidavit mentions an investigation, but neither the motion nor the
affidavit explains why the motion to reopen was not filed until nearly three
months after the delinquency notice was mailed. 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.

Having reviewed U.S. Silica’s request and the Secretary’s response, we
find that the operator has failed to fully explain its delay in filing its
motion to reopen once it learned that the matters it wished to contest had
become final. We have held that an operator must explain any delay in acting
once it learns that a contest has not been timely filed. Higgins Stone Co. , 32
FMSHRC 33, 34 (Jan. 2010) “Further, we have emphasized the importance of the
operator’s explanation of the time it took to file for reopening after receipt
of a notice of delinquency.” Lone Mountain
Processing, Inc. 35 FMSHRC 3342, 3346
(Nov. 2013) citing Highland Mining Co., 31 FMSHRC 1313, 1315-17 (Nov.
2009). An operator’s failure to explain any delay beyond 30 days in seeking
relief is grounds for denial of the motion.

In this case, the
motion was not filed until nearly three months after the Secretary mailed the
delinquency notice. While the affidavit states that the operator investigated
the matter, the motion cites no extraordinary circumstances or other
explanation for its failure to act promptly once its failure was known

While the operator’s excuse for its initial failure to
contest the penalties is plausible and well-supported, it has failed to explain
its delay in acting once it discovered it had not contested the penalties as it
had intended. Therefore, in the interest of justice, we direct the operator to
show cause within 20 days of the date of this order why the Commission should
not deny this motion and dismiss this matter with prejudice due to the delay of
approximately seven weeks beyond the 30 days the Commission has determined to
be a reasonably prompt response upon discovering a default. If the operator
fails to submit a reasonable explanation within the time provided by this
order, the Commission shall dismiss this docket with prejudice and order
payment of the outstanding penalties .

/s/ Marco M.
Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (e-mail):

Michael Peelish, Esq.

Counsel for U.S. Silica

Law Office of Adele Abrams, P.C.

[email protected]

Archith Ramkumar, Esq.

Appellate Counsel

Office of the Solicitor

Division of Mine Safety and
Health

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health Administration

[email protected]

[1]
The motion itself is somewhat confused. It the
opening paragraph, it asserts that “the respondent’s Answer to the Secretary’s
Proposed Assessment of Civil Penalty . . . was not filed because the Secretary
never issued a Proposed Assessment of Civil Penalty.” Mot. to Reopen at 1. But
the beginning of the next paragraph acknowledges that the proposed assessment
“was issued by MSHA on 9/10/2019.” Id. Later, the motion states that
“The Secretary never filed the Proposed Assessment of Civil Penalty to which
the respondent could have filed an Answer.” It is possible that the operator
has conflated the duty to answer a penalty petition, but that duty is
irrelevant where, as here, the operator has never triggered the Secretary’s
obligation to file a petition by contesting the penalties in the first
instance.

[2]
The motion implies that the operator intended to
send its payment and its notice of contest to the same address. However, the
contest form instructions clearly state that notices of contest must be mailed
to MSHA’s Civil Penalty Compliance Office in Arlington, VA, whereas payments
are sent to a different address in St. Louis. As we have noted in previous
cases, this is a common misunderstanding among mine operators.