**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON,D.C. 20004‐1710**

 

 

 

SECRETARY OF LABOR,                             :                     

  MINE SAFETY AND HEALTH                  :                                             

  ADMINISTRATION (MSHA)                     :

                                                                         :

                        v.                                              :         Docket No.  WEST 2022-0119

                                                                         :         A.C. No. 04-00167-529152             

OMYA, INC.                                                    :

 

BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker,Commissioners

 

ORDER

 

BY:     Jordan, Chair; Althenand Rajkovich, Commissioners

Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2012) (“Mine Act”). On January 11, 2022, the Commission received fromOmya, Inc. (“Omya”) 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), 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).

 

 

 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicates that the proposed assessment was delivered to the operator on February10, 2021. The assessment became a final order of the Commission on March 12,2021. 

 

Omya asserts that it had always intended to contest the penalties,which is evidenced by its Notices of Contest filed on November 8, 2020. Omyasubsequently received a combined invoice, which contained an outstandingbalance and new penalties. However, believing that the notices of contest had preservedthe operator’s contest rights, Omya’s Packaging Shipping Manager erroneously paidthe penalties on March 19, 2021, in an effort to avoid a delinquency. Theoperator seeks reopening so that it may properly contest the penalties. Omya has not filed any other motions to reopen withthe Commission in the last two years. 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 in accordance with MSHA’s regulations at 30 C.F.R. §100.7 and the Commission’s procedural rules.

 

The Commission has granted requests to reopenwhere operators have mistakenly paid penalties and shown that theyintended to contest the penalties or contested the underlying citations. See *Rockwell Mining, LLC*, 42 FMSHRC 793, 793-94 (Oct. 2020)(finding that operator sufficiently explainedits failure to timely contest which was the result of excusable neglect);*Doe Run Co.*, 21 FMSHRC 1183, 1184-85(Nov. 1999); *Cyprus Emerald Resources Corp*., 21 FMSHRC 592, 592-93 (June 1999);*compareSterling Sand & Gravel Co*., 22 FMSHRC 935, 936 (Aug. 2000) (motion toreopen denied where operator failed to show that it intended to contest thepenalty that was paid). In *Kaiser CementCorporation*, the operator’s failure to contest a proposed assessment andits inadvertent payment of the penalties was determined to be the result of aprocessing error which the Commission reasonable found to qualify as“inadvertence” or “mistake.” *Kaiser Cement Corp.*, 23 FMSHRC 374, 375(Apr. 2001);*see also**Cyprus*,21 FMSHRC at 593-94.

 

 

Havingreviewed Omya’s request and the Secretary’s response, we find that due to an internalprocessing error, the operator failed to properly contest the penalty assessment.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

 

 

**Commissioner Baker, dissenting:**

 

Omya, Inc. received its proposedassessment in this matter on February 10, 2021 and that assessment became finalon March 12, 2021. On or about March 19, 2021, Omya paid the outstandingamounts contained in the final assessment. On January 11, 2022, Omya filed theinstant Motion to Reopen claiming both that it had mistakenly failed to contestthe proposed assessment and had mistakenly paid the assessed penalty. 

 

In the past, the Commission has held thatwhere a failure to contest a proposed assessment results from an inadequate orunreliable internal processing system, the operator has not established groundsfor reopening the assessment. *See e.g. Shelter Creek Capital, LLC*, 34FMSHRC 3053, 3054 (Dec. 2012); *Oak Grove Res., LLC*, 33 FMSHRC 103, 104(Feb. 2011); *Double Bonus Coal Co.*, 32 FMSHRC 1155, 1156 (Sept. 2010). Further,the Commission has also held that an operator accidentally paying a citation itintends to contest amounts to such an inadequate or unreliable internalprocessing system and cannot form the basis for reopening. *See e.g. PinnacleMining Company, LLC*, 30 FMSHRC 1061 (Dec. 2008); *Moose Lake Aggregates*,34 FMSHRC 1 (Jan. 2012); *KuhlmanConstruction*, 34 FMSHRC2894 (Nov. 2012); *NorandaAluminum, LLC*, 37 FMSHRC2731 (Dec. 2015); and *Enviro Care, Inc.*, 39 FMSHRC 819 (2017). Similarly,the Commission has found that in situations where the operator had already paidthe penalty in full, a motion to reopen is moot. *See e.g. RivertonInvestment Corp.*, 31 FMSHRC 1067 (Oct. 2009); *Performance Coal Co.*,32 FMSHRC 466 (June 2010); *Marfork Coal Company*, 32 FMSHRC 1185 (Oct.2010); *see also Lee Mechanical Contractors, Inc.*, 38 FMSHRC 44 (Jan.2016) (Jordan, concurring).

 

In fact, the case where the Commissionfirst recognized its ability to reopen cases under Rule 60(b) concerns analleged mistaken payment. *Jim Walter Res., Inc.*, 15 FMSHRC 782, 789 (May1993). In that case, the Commission concluded that administrative confusioncaused by processing a large number of proposed penalty assessments does notexcuse an operator from making deliberate litigation choices. *Id*. at790. Further, the Commission noted that it is not a court of general equity andfurther that equity aids those who vigilantly pursue their own rights. *Id*.;*see also Pittsburg & Midway Coal Mining Company*, 15 FMSHRC 969 (Jun.1993); *Monterey Coal Company*, 15 FMSHRC 997 (Jun. 1993); and *MountainCoal Co.*, 15 FMSHRC 1012 (Jun. 1993). 

 

In this case, Omya failed to timelycontest a proposed penalty and then paid the amount owed. I do not believe itis accurate to characterize this action as a justifiable mistake or excusableneglect, as Omya took an affirmative step in making a payment. Instead, Omya’sdefault and payment were the result of an inadequate or unreliable internalprocessing system. Omya’s mistaken payment indicates that it has failed tovigilantly pursue its own rights. 

 

Therefore, I would deny its motion toreopen.

 

 

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

 

**Distribution:**

 

Adele L. Abrams, Esq., CMSP 

Law Office of Adele L.Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

Safetylawyer@gmail.com

 

Josh Schultz, Esq.

Law Office of Adele L.Abrams, P.C. 

600 17th St #2800 South

Denver, Co. 80202 

jschultz@aabramslaw.com

 

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

Nelson.April@dol.gov

 

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

scott.emily.t@dol.gov

 

Melanie Garris USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

 

Chief Administrative LawJudge Glynn F. Voisin

Federal Mine Safety HealthReview Commission

1331 Pennsylvania Avenue, NWSuite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov