Secretary of Labor v. Material Sand & Stone Corporation

Plain-English summary

Material Sand & Stone asked to reopen a default after it sent its answer to the Secretary's representative instead of filing it with the Commission. The company said it never received the Commission's order to show cause and later pursued the matter after delinquency and collection notices arrived. Commission records confirmed that the show-cause order had not been properly served. The Commission held that no final default order existed, making the reopening request moot. It remanded the still-open case for further proceedings and reminded the company that Commission filings must be submitted to the Commission.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 823(d)(1) and 823(d)(2)(A)(i)
• Outcome: The reopening motion was denied as moot, and the open case was remanded.
• Key point: An unserved show-cause order cannot become a final default order of the Commission.

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.
MATERIAL SAND & STONE CORPORATION |
|
|
Docket No. YORK 2025-0020 A.C. No. 37-00068-604329
|

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 July 31, 2025, the Commission received from Material Sand & Stone Corporation (“MSSC”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On January 22, 2025, the Chief Administrative Law Judge issued an Order to Show Cause in response to MSSC’s perceived failure to answer the Secretary of Labor’s November 19, 2024, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on February 24, 2025, when it appeared that the operator had not filed an answer within 30 days.

MSSC asserts that it never received the Order to Show Cause, which was allegedly served on the operator solely via email. It also asserts that it timely responded to the Secretary’s Penalty Petition on December 19, 2024, when it sent an answer to the Conference Litigation Representative (“CLR”) representing the Secretary in this matter. The operator subsequently contacted the relevant CLR after receiving a delinquency notice for unpaid penalties on May 15, contacted the Mine Safety and Health Administration’s Office of Assessments and local District Office after receiving a collections letter from the Department of the Treasury dated July 15, and was ultimately directed to the Commission’s procedures for filing a motion to reopen.

The Secretary opposes MSSC’s motion to
reopen this proceeding. She asserts that the operator’s misunderstanding of its
obligation to file an answer with the Commission (rather than with the
Secretary of Labor) is not a proper justification for relief. She further notes
that the operator has a recent history of defaults.

A Judge’s jurisdiction terminates when a default occurs. 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).

A
review of Commission records indicates that the Order to Show Cause was not
properly served on the operator and therefore did not result in a final order
of default. Accordingly, the operator’s motion is denied as moot. See, e.g.,
Iron Mountain Quarry, LLC, 42 FMSHRC 901, 902 (Nov. 2020). This case
remains open, and is remanded 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.[1]

/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, 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 (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 was not served the Order to Show Cause and Order of Default. As such, there is no final order to reopen. Though I believe the Commission lacks the authority to consider motions to reopen, I concur with the Majority as the Commission is not reopening the matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Robert A. Pezza, President

Material Sand & Stone Corporation

618 Greenville Road

North Smithfield, RI 02896

[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 N4428

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]

Acting
Chief Administrative Law Judge Michael G. Young

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]

[1] MSCC’s
submissions suggest it may not understand that the Commission is a separate
entity from the Department of Labor. Filings in Commission proceedings (including
answers to the Secretary’s Penalty Petition) must be submitted to the
Commission. 29 C.F.R. §§ 2700.5, 2700.29.