Secretary of Labor v. Smart Sand, Inc.

Plain-English summary

Smart Sand and its counsel decided to contest one citation, but the deadline was not calendared after a paralegal's recent departure. Counsel discovered the missed contest while proactively reviewing MSHA's data system and moved to reopen within two weeks. An affidavit documented the error, and the firm changed its procedures so multiple people would monitor deadlines. The Secretary did not oppose relief and noted the operator's history of timely payments and contests. The Commission reopened the citation and remanded it for a penalty proceeding, with one Commissioner dissenting on reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: Citation No. 8736120 was reopened and remanded for further proceedings.
• Key point: A documented calendaring mistake can support reopening when counsel discovers it through a prompt self-audit, acts quickly, and strengthens deadline controls.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON,
DC 20004-1710

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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
SMART SAND, INC., |
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Docket No. LAKE 2025-0274 A.C. No. 47-03625-618663
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BEFORE: Rajkovich, Chair; Jordan, Baker, and Marvit, Commissioners

ORDER

BY: Rajkovich, Chair; Jordan, and Baker, Commissioners

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act”). On June 23, 2025, Smart Sand, Inc., (“Smart Sand”) filed 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).

On April 28, 2025, the Secretary delivered a proposed assessment to the operator. On May 28, 2025, the assessment became a final order of the Commission when Smart Sand did not file a contest within the required 30-day period.

Smart Sand represents that on June 9, 2025, it discovered that it had failed to timely contest Citation No. 8736120 during a review of the Secretary of Labor’s Mine Data Retrieval System (“MDRS”). Counsel explained that previously, on May 2, 2025, counsel and the operator met and decided to contest Citation No. 8736120 and its civil penalty. The penalties for the other citations in this matter were timely paid. However, the contest date for Citation No. 8736120 was never properly calendared by the firm. Counsel attributed the error to a recent departure of a paralegal. Counsel has since changed office procedures so that multiple people have the responsibility to ensure compliance with deadlines. Counsel attested to these representations in an accompanying affidavit. R. Ex. A. The Secretary does not oppose the request to reopen, noting that the operator has a history of timely paying or contesting penalties. Furthermore, counsel acted promptly upon realizing his mistake in this instance.

The Commission has recognized that
“[m]otions to reopen received within 30 days of an operator’s receipt of its
first notice from MSHA that it has failed to timely file a notice of contest
will be presumptively considered as having been filed within a reasonable
amount of time.” Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov.
2009). Here, counsel’s prompt filing of a motion upon realizing its failure to
timely file, in association with the operator’s history of timely compliance
with Mine Act filing deadlines, indicates that the failures were the result of
a mistake rather than inadequate office procedures.

Accordingly, having reviewed Smart Sand’s
motion and the Secretary’s response, we find that the operator’s failure to
timely file was the result of a mistake. See Wyo-Ben, Inc., 47 FMSHRC __,
slip op. 2, No. WEST 2023-0320 (Dec. 8, 2025) (reopening a case after
determining that “[t]he operator demonstrated that the mistake was made in good
faith by proactively reviewing MSHA’s MDRS and promptly moving to reopen upon
discovery of the error.”). In the interest of justice, we hereby reopen Citation
No. 8736120 and remand it to the Acting 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/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, dissenting:

I write to disagree with the Majority in this case for the reasons set forth below.

Explosive
Contractors, 46 FMSHRC 965 (Dec. 2024), I dissented and explained that Congress
did not grant the Commission the authority to reopen final orders under section
105(a) of the Mine Act. The Commission’s repeated invocation of Federal Rule of
Civil Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech, I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975 (citing Hancock Materials,
Inc., 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for
the proposition that the Commission may not reopen final orders under its
statutory grant, but an operator may proceed if it has not properly received a
proposed order.

In the instant
case, as the Majority recounts, the Commission’s order became final under the
language of section 105(a). The Majority, however, votes to reopen the case.
The Mine Act has not granted us authority to reconsider final orders of the
Commission as I set out more fully in Explosive Contractors. To the
contrary, it has limited our authority to do so. Therefore, I respectfully
dissent and would deny reopening.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Nicholas W. Scala, Esq., CMSP

Chair, MSHA Practice Group

Conn Maciel Carey LLP

5335 Wisconsin Avenue NW, Suite 660

Washington, DC 20015

[email protected]

Jennifer A. Ledig, Esq.

Thomas A. Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

[email protected]

Melanie
Garris

US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Administrative Law Judge Michael G. Young

Federal
Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW

Washington, DC 20004-1710

[email protected]