Secretary of Labor v. Nyrstar Tennessee Mines, Strawberry Plains, LLC

Plain-English summary

Nyrstar intended to contest part of a proposed penalty assessment but inadvertently mailed the contest to MSHA's St. Louis payment address with payment for the uncontested penalties. MSHA received the partial payment, but the assessment later became final and the agency sent a delinquency notice. The Secretary did not oppose reopening but urged Nyrstar to send future contests to the correct address. The Commission found mistake, inadvertence, and excusable neglect, reopened the assessment, and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.1(b)
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: Mailing a contest with payment to MSHA's payment address supported relief from the resulting final order.

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.

NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

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SE 2020-0251-M

A.C. No. 40-00170-515280

BEFORE: Traynor, Chair; Althen and Rajkovich, 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.
(2012) (“Mine Act”). On September 18, 2020, the Commission received from Nyrstar
Tennessee Mines, Strawberry Plains, LLC (“Nyrstar”) a motion seeking to reopen a
penalty assessment that appeared to have 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).

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).

Records of the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate
that the proposed assessment was delivered on June 11, 2020, and became a final
order of the Commission on July 13. Nyrstar’s motion says that it inadvertently
sent the notice of contest to MSHA’s payment address in St. Louis, along with
partial payment of the uncontested penalties. MSHA received payment of $123 for
the uncontested penalties on June 29. The agency says it sent the operator a
delinquency notice on August 26.

The Secretary does
not oppose the requests to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed at the correct address. Having
reviewed Nyrstar’s request and the Secretary’s
response, we find that the operator has sufficiently explained its
failure to timely contest the citations at issue as the result of mistake,
inadvertence, and excusable neglect. 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 .

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Chair

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Commissioner

Distribution (by e-mail):

Donna Vetrano Pryor, Esq.

Husch Blackwell, LLP

Counsel for Nyrstar Tennessee Mines, Strawberry Plains, LLC

1801 Wewatta Street, Suite 1000

Denver, CO 80202

[email protected]

John M. McCracken, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12 th Street
South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

1331 Pennsylvania Avenue, NW,
Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

201 12 th Street
South, Suite 401

Arlington, VA 22202-5452

[email protected]