Cargill Deicing Technology (Commission decision, March 23, 2007)

Plain-English summary

Cargill Deicing Technology timely contested two MSHA citations and two orders, but its related penalty contest form was never mailed. A new operations coordinator marked the items to contest and passed the form to payroll, believing payroll would mail it, while payroll believed he would do so. Cargill discovered the mistake after receiving a delinquency notice, and the Secretary did not oppose reopening. The Commission remanded the request for a judge to determine whether the internal misunderstanding established good cause and whether relief from the final order should be granted.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 U.S.C. § 815(a)
• Outcome: The reopening request was remanded for a determination of good cause and possible proceedings on the merits.
• Key point: An internal mailing mistake may justify reopening when the operator promptly explains the error and had already contested the underlying enforcement actions.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 23, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CARGILL DEICING TECHNOLOGY

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Docket No. CENT 2007-126-M
A.C. No. 16-00509-99958

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On February 16, 2007, the Commission received from Cargill Deicing Technology (“Cargill”) a motion by counsel 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).

On July 26 and August 3, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued two citations and two orders to Cargill. On August 23, Cargill timely filed notices of contest of the citations and orders, and those cases are presently pending before an administrative law judge. On October 17, Cargill received the proposed assessments from MSHA. Cargill states that its operations coordinator, who was new to the position, checked the boxes next to the citations and orders that he wanted to contest and passed the assessment to payroll personnel, who he assumed would pay the remaining fines and mail the form. Cargill further states that payroll personnel assumed that the operations coordinator would mail the form, but it was never mailed. Cargill learned of the error when it received a delinquency notice from MSHA on January 8, 2007. The Secretary states that she does not oppose Cargill’s request to reopen the penalty assessment.

We have held 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. 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).

Having reviewed Cargill’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Cargill’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Mark N. Savit, Esq.

Donna Vetrano, Esq.

Patton Boggs, LLP

1660 Lincoln Street, Suite 1900

Denver, CO 80264

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021