U.S. Silica Company (Commission decision, May 18, 2007)

Plain-English summary

U.S. Silica wrote on an assessment form that it was contesting two proposed penalties but inadvertently left the corresponding contest boxes unchecked. The penalties were later paid by mistake, and the assessments became final Commission orders. U.S. Silica asked to reopen them, and the Secretary did not oppose. The Commission remanded the matter for a judge to decide whether the written notation and related mistakes established good cause for relief.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b) and 30 U.S.C. § 815(a)
• Outcome: The two final penalty assessments were remanded for a good-cause determination.
• Key point: A written statement of intent to contest may support reopening even when required checkboxes were left blank and the penalties were later paid by mistake.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 18, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

U.S. SILICA COMPANY

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Docket No. PENN 2007-230-M
A.C. No. 36-03122-97518

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On April 26, 2007, the Commission received from U.S. Silica Company (“U.S. Silica”) a letter requesting 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).

On July 11, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Citation Nos. 6040003 and 6040006 to U.S. Silica. MSHA subsequently sent proposed penalty assessments covering those citations to U.S. Silica. The assessment forms contain boxes that operators must check to indicate their desire to challenge particular penalties. U.S. Silica asserts that it inadvertently left the boxes unchecked on the contest form, but that it had written on the form that it was contesting those two proposed penalties. U.S. Silica further states that the penalties were inadvertently paid at a later date. On those bases, U.S. Silica requests that the Commission reopen the proceeding. The Secretary does not oppose the request to reopen the proposed penalty assessments.

We have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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).

Having reviewed U.S. Silica’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for U.S. Silica’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Chris Bryan, CMSP

U.S. Silica Company

P.O. Box 187

Berkeley Springs, WV 25411-0187

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021