Secretary of Labor v. Specialty Sand Company

Plain-English summary

Specialty Sand Company asked the Commission to reopen a final penalty assessment, saying that it never received the proposed assessment. The company intended to pay the full amount and sought reopening only to avoid collection costs. MSHA had sent a delinquency notice, but Specialty waited more than 30 days to request reopening. Because the company did not explain that later delay, the Commission denied the motion.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 801, 815(a), 823(c)
• Outcome: The motion to reopen the final penalty assessment was denied.
• Key point: An operator that waits more than 30 days after a delinquency notice must explain the delay when seeking reopening.

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.

SPECIALTY
SAND COMPANY,

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:

:

:

:

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Docket
No. CENT 2015-169-M

A.C.
No. 41-01143-338044

BEFORE:  Young, Nakamura,
and Althen, Commissioners[1]

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 12, 2015, the Commission received
from Specialty Sand Company (“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) 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 mailed on January 25, 2014, was
returned unclaimed on March 6, 2014, and became a final order of the Commission
on April 7, 2014.  Specialty asserts that it never received the proposed
assessment. However, Specialty also concedes that it intends to pay the full
assessment amount, and wishes to reopen this matter simply to avoid paying
collection costs. The Secretary opposes the request to reopen and notes that a
delinquency notice was mailed to the operator on May 21, 2014, and the case was
referred to the U.S. Department of Treasury for collection on September 11,
2014. The Secretary asserts that the operator was made aware of the proposed
assessment and confirmed its mailing address on file prior to the mailing of
the proposed assessment on January 25, 2014. However, the postal service was
unable to deliver the proposed assessment to this address.            

In considering
whether an operator has unreasonably delayed in filing a motion to reopen, we
find relevant the amount of time that has passed between an operator’s receipt
of a delinquency notice and the operator’s filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland
Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to
reopen filed more than 30 days after receipt of notice of delinquency must
explain the reasons why the operator waited to file a reopening request, and
lack of explanation is grounds for the Commission to deny the motion). Here,
the delay in responding to MSHA’s delinquency notice amounted to more than 30
days. While Specialty explained its failure to timely contest the proposed
assessment, it failed to explain its delay in filing this motion to reopen
after receiving the delinquency notice. This lack of explanation is grounds for
denial.

Accordingly,
we deny Specialty’s motion.    

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Kevin
Cosgrove

Plant
Manager

Specialty
Sand Co.

16601
Garrett Road

Houston,
TX 77044

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] This case has
been delegated to a panel of three Commissioners pursuant to section 113(c) of
the Mine Act for the limited purpose of assessing the merits of the motion to
reopen. 30 U.S.C. § 823(c).