Secretary of Labor v. CSI Sands NE, Ltd.

Plain-English summary

CSI Sands filed its penalty contest 12 days late while rebuilding its facility and dealing with an employee injury, a natural gas supply failure, and a management change. The proposed assessment had been delivered to the mine supervisor, who then accepted another job. CSI said the reconstruction had strained its staff and that its new manager would ensure future assessments were handled on time. The Secretary did not oppose reopening. The Commission found that the brief delay resulted from excusable neglect caused by unusual circumstances and staff disruption, so it reopened the assessment and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further proceedings.
• Key point: A short delay tied to documented operational and staffing disruptions supported 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.

CSI
SANDS NE, LTD.

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Docket
No. YORK 2023-0003

A.C.
No. 30-03261-548285

BEFORE: 
Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On October 6, 2022, the Commission received
from CSI Sands NE, Ltd. (“CSI”) 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 January 14, 2022, and
became a final order of the Commission on February 14, 2022. CSI states that it
was dealing with extraordinary circumstances involving a complete
reconstruction of its facility, an employee’s injury, a natural gas supply
failure, and a change in management. CSI explains that the reconstruction of
its facility strained its staff. After the proposed assessment was delivered to
the mine supervisor, the mine supervisor accepted another job offer. CSI
explains that due to these circumstances, it filed its proposed penalty contest
twelve days late. The operator states that its new manager has a history of
successful mine operation and will ensure that the mine addresses any proposed
penalty assessments in a timely manner. 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 CSI’s request and the Secretary’s
response, we find that the relatively brief delay in filing the notice
of contest was the result of excusable neglect arising from unusual circumstances
and staff disruption. In the interest of
justice, we hereby reopen this matter and remand it to the 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/
Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich,
Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker,
Commissioner

Distribution:

Sean
S. Kelly, Esq.

Ross, Brittain
& Schonberg Co., L.P.A.

6480 Rockside
Woods Blvd. South

Suite 350

Cleveland, OH
44131

[email protected]

Brian K. Brittain,
Esq.

Ross, Brittain
& Schonberg Co., L.P.A.

6480 Rockside
Woods Blvd. South

Suite 350

Cleveland, OH
44131

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA,
OAASEI/CPCO

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]