Secretary of Labor v. Envirotech Drilling, LLC

Plain-English summary

Envirotech timely contested an assessment and later said it received no further correspondence until a delinquency letter. Records showed that MSHA's penalty petition and the Commission's show-cause order had both been sent to the safety manager's active email address. Envirotech did not identify technical problems or otherwise explain why those messages were missed. The Commission held that possible confusion about the process could not replace a detailed factual explanation and denied reopening. Commissioner Marvit concurred while also questioning the Commission's authority to reopen final judge decisions.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The motion to reopen the default order was denied.
• Key point: A claim of nonreceipt needs a specific explanation when official records show service to an active email address.

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. 

ENVIROTECH
DRILLING, LLC

Docket
No. WEST 2024-0121

A.C.
No. 26-02081-593042

BEFORE: 
Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY: Jordan, Chair,
and Baker, Commissioner

This matter arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2018) (“Mine Act”). On August 14, 2024, the Commission received from Envirotech
Drilling, LLC (“Envirotech”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.

On
April 8, 2024, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Envirotech’s perceived failure to answer the Secretary of
Labor’s February 7, 2024, Petition for Assessment of Civil Penalty. By its
terms, the Order to Show Cause was deemed a Default Order on May 9, 2024, when
it appeared that the contractor had not filed an answer within 30 days.

The
Judge’s jurisdiction in this matter terminated when the default occurred. 29
C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules,
relief from a Judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. §
823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of
the Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here became
a final decision of the Commission on June 18, 2024. MSHA mailed the contractor
a delinquency notice on July 24, 2024.

Envirotech
contested the initial proposed assessment on January 31, 2024. It asserts that it
received no correspondence from MSHA in the following weeks. Envirotech emailed
MSHA on February 23 to request an update and was informed on February 26 that
its request was being processed. The contractor asserts that it received no
further correspondence regarding the assessment until the July delinquency
letter. [1]

The Secretary opposes the request to reopen.
She challenges Envirotech’s claim that it received no correspondence regarding
the assessment, noting that the Secretary’s Penalty Petition (February 7, 2024)
and the Judge’s Show Cause Order (April 8, 2024) were properly served on
Envirotech’s Safety Manager. She further asserts that Envirotech has not
explained its failure to monitor or pursue its case after the February
communication. However, in light of Envirotech’s history of timely payment and
apparent confusion regarding the contest process, the Secretary requests that
the Commission deny Envirotech’s motion without prejudice to afford the
contractor an opportunity to satisfy the requirements for reopening.

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”); Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal Prep.
Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).

A party seeking to reopen a final penalty
bears the burden of showing that it is entitled to such relief, through a
detailed explanation of its failure to timely respond. Revelation Energy,
LLC , 40 FMSHRC 375, 375-76 (Mar. 2018). At a minimum, the applicant must
provide all known details and a clear explanation that accounts, to the best of
the operator’s knowledge,

for the failure to submit a timely response. Higgins Stone Co. , 32
FMSHRC 33, 34 (Jan. 2010). General assertions or conclusory statements are
insufficient. Southwest Rock Prod., Inc. , 45 FMSHRC 747, 748 (Aug. 30,
2023);  B & W Res., Inc ., 32 FMSHRC 1627, 1628 (Nov. 2010).

Envirotech
claims that between February and July of 2024 it received no correspondence regarding
the assessment other than a single email from MSHA stating that its request was
being processed. However, the Secretary’s Penalty Petition and Judge’s Show
Cause Order were sent to Envirotech’s Safety Manager on February 7 and April 8,
2024, respectively. Records indicate that the Petition and Order were sent to
the same email address that the Safety Manager provided with his initial
contest in January 2024, used to communicate with MSHA in February 2024, and
provided with his motion to reopen in August 2024, indicating that the address was
functional and in use during the relevant time.

Envirotech does not assert that it had any
technical difficulties with its email system or otherwise explain the Safety
Manager’s failure to discover and respond to the Petition and Order. Cf. Western
Refractory Constr., Inc. , 46 FMSHRC 871 (Oct. 2024) (reopening where a
penalty petition was overlooked due to an isolated non-recurring instance of
mail being misrouted to a spam folder); Liggett Mining, LLC , 33 FMSHRC
153 (Feb. 2011) (finding an operator failed to adequately justify reopening
where it merely stated that it could not confirm its emails had been received).
Envirotech’s motion does not adequately explain its failure to respond to the
Petition and Order, particularly in light of the documents’ apparent service on
the correct email address. [2]

The Secretary acknowledges that Envirotech
may have been confused regarding the contest process. E.g. , Highway Materials, Inc. , 45 FMSHRC 593 (July 2023) (reopening
where the operator was unfamiliar with an aspect of the contest process). Additionally,
Envirotech’s confusion may have been exacerbated by MSHA’s February 26 email
informing the contractor that its request was being processed. Nevertheless, we
cannot reopen proceedings without a detailed explanation of the party’s failure
to timely respond. Having reviewed Envirotech’s
request and the Secretary’s response, we find that Envirotech has not
provided sufficient explanation to justify reopening the captioned proceeding.

Accordingly, Envirotech’s motion to reopen
is DENIED.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/
Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Marvit, concurring :

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

In 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, 977 (Dec. 2024) (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 operator failed to answer the Judge’s Order to Show Cause and it
became a final decision under the Act. Similar to section 105(a),

the Act here provides a clear directive on the grounds for review of a final
decision. 30 U.S.C.

§ 823(d)(1)-(d)(2)(A)(i). The Commission declined to exercise its authority to
review the decision within the period allowed. As such, I do not believe that
Rule 60(b) should be invoked under these circumstances either, similar to my
reasoning in the cases cited above. Though I believe the Commission lacks the
authority to consider motions to reopen, I concur with the Majority in denying
reopening in this matter           

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Tim
Pruitt, Safety Manager

Envirotech
Drilling LLC

900
East 4 th St.

Winnemucca,
NV 89445

[email protected]

[email protected]

Thomas
A. Paige, Esq. 

Office
of the Solicitor 

U.S.
Department of Labor 

Division
of Mine Safety and Health 

200
Constitution Avenue NW, Suite N4420-N4430 

Washington,
DC 20210 

[email protected] 

Emily
O. Roberts, Esq.

Division
of Mine Safety and Health

Office
of the Solicitor

200
Constitution Avenue NW Suite N4420 – N4430

Washington,
DC 20210

[email protected]

Melanie
Garris

US Department of Labor/MSHA 

Office
of Assessments, Room N3454 

200
Constitution Ave NW 

Washington,
DC 20210 

[email protected] 

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] Envirotech also
asserts that it learned during subsequent calls with MSHA that a conference had
been held on May 25, 2024, without the contractor’s knowledge or participation.
The Secretary states that no such conference was held, and that it has been
unable to ascertain whom the contractor may have spoken to during the alleged phone
calls.

[2] Envirotech’s
motion also fails to explain why, according to MSHA’s Mine Data Retrieval
System, the relevant penalties appear to have been paid.