Chemical Lime Company of Virginia, Inc.

Plain-English summary

Chemical Lime asked the Commission to reopen a penalty assessment after it mailed payment for uncontested penalties but mistakenly omitted the contest form. MSHA had no record of receiving the form, although its payment center received the company's check. The Secretary did not oppose reopening and urged the operator to send future contests to the correct MSHA address on time. In the interests of justice, the Commission reopened the assessment and remanded it for further proceedings.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded for proceedings on the merits.
• Key point: An omitted contest form may support reopening when the operator timely handled the uncontested payment and the Secretary does not oppose relief.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 20, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

v.

CHEMICAL LIME COMPANY

OF VIRGINIA, INC.

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Docket No. VA 2012-251-M

A.C. No. 44-00082-272810

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On February 14, 2012, the Commission received from
Chemical Lime Company of Virginia, Inc. (“Chemical”) 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) 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 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 mistake, inadvertence, or excusable neglect.
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 record indicates that the proposed assessment was delivered on November 23, 2011,
and became a final order of the Commission on December 23, 2011. Chemical asserts that it
mistakenly failed to include the contest form with the payment for the uncontested penalties,
which it mailed on December 15, 2011.

The Secretary does not oppose the request to reopen,
but notes that there is no record that the penalty contest form was received by the Department of
Labor’s Mine Safety and Health Administration’s (“MSHA”) Civil Penalty Compliance Office in
Arlington, VA. The Secretary also notes that the MSHA payment center in St. Louis, MO,
received a payment for the uncontested penalties, by check dated December 15, 2011. The
Secretary urges the operator to take steps to ensure that future penalty contests are timely filed
and mailed to the MSHA Arlington, VA address.

Having reviewed Chemical’s request and the Secretary’s response, in the interests 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/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jeff Pack

Chemical Lime Company of VA., Inc.

2093 Big Stoney Creek Rd.

Ripplemead, VA 24150

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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