Cargill Deicing Technology (Commission decision, May 8, 2008)

Plain-English summary

Cargill paid penalties for nine citations but sought a hearing on the remaining citation. It said it had requested a conference with MSHA, learned that MSHA had no record of the request, and was told to refax a hearing request to the Commission because of a clerical error. The Secretary did not oppose relief, but the Commission found Cargill's explanation insufficiently detailed. The Commission remanded for the Chief Administrative Law Judge to decide whether good cause justified the missed assessment deadline and whether the final order should be reopened.

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 entitlement to relief.
• Key point: Requesting an MSHA conference does not itself preserve a penalty contest, and an incomplete account of a missing request requires a factual good-cause determination.

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, D.C. 20001

May 8, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CARGILL DEICING TECHNOLOGY

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Docket No. CENT 2008-218-M

A.C. No. 16-00509-130582

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 January 17, 2008, the Commission received a letter from Cargill Deicing Technology (“Cargill”) requesting that the Commission 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 November 1, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to Cargill a proposed assessment (A.C. No. 000130582), proposing civil penalties for ten citations. It appears that Cargill paid the proposed penalties for nine of the citations and did not pay the proposed penalty for Citation No. 6240831. In its letter, Cargill requests a hearing on Citation No. 6240831. Cargill submits that it previously requested a conference with MSHA on the citation, but that it was subsequently informed that MSHA did not have a record of that request. Cargill states that “[d]ue to clerical error [MSHA] suggested that [it] re-fax the request . . . for a hearing [to the Commission].” The Secretary of Labor states that she does not oppose Cargill’s request for relief. For convenience, the Secretary attached a copy of the proposed assessment, noting which penalties had been paid.

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).

We conclude that Cargill failed to provide a sufficiently detailed explanation for its failure to timely return the proposed assessment form contesting the proposed penalty for Citation No. 6240831. Accordingly, in the interests of justice, and in consideration of the unopposed nature of Cargill’s request, 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:

Antonde Branch

Operations Coordinator

Cargill Deicing Technology

P.O. Box 106

Avery Island, LA 70513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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