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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). 

March 9, 2023
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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. 
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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. 

 

_________________________________ 

Mary Lu Jordan, Chair 

_________________________________ 

William I. Althen, Commissioner 

 

 

_________________________________ 

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 
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(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. 

_________________________________ 

Timothy J. Baker, Commissioner 
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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