Premier Chemical LLC (Commission decision, March 18, 2005)

Plain-English summary

Premier Chemical asked the Commission to reopen two MSHA penalty assessments after its contests arrived five days late and 21 days late. The company provided no explanation or supporting documents for the delays, but the Secretary did not oppose relief. The Commission remanded both matters to the Chief Administrative Law Judge to decide whether good cause existed and whether the final orders should be reopened. It did not decide the penalties or whether Premier would ultimately receive relief.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.12
• Outcome: The two final penalty assessments were remanded for a good-cause determination.
• Key point: The Commission left open whether two unexplained late contests justified reopening the final orders.

Full text (FMSHRC public release)

PREMIER CHEMICAL LLC -- March 18, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

March 18, 2005

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEST 2005-188-M
ADMINISTRATION (MSHA) : A.C. No. 26-00002-24523
:
v. : Docket No. WEST 2005-189-M
: A.C. No. 26-00002-27057
PREMIER CHEMICAL LLC :

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act").1 On February 10, 2005, the Commission received from Premier Chemical LLC ("Premier") two letters addressed to the Department of Labor's Mine Safety and Health Administration ("MSHA") inquiring as to the status of MSHA's proposed penalty assessments designated A.C. No. 26-00002-24523 and A.C. No. 26-00002-27057. Both penalty assessments had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). We construe the letters as requests that the Commission reopen the penalty assessments.

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).

MSHA issued the proposed assessments on April 15, 2004 (No. 26-00002-24523) and May 13, 2004 (No. 26-00002-27057). Attached to Premier's requests are letters from MSHA's Office of Assessments. As to No. 26-00002-24523, MSHA explains to Premier that although the company attempted to contest the proposed penalty, it did not do so in a timely manner (the deadline for the contest was May 27, 2004, but MSHA did not receive Premier's contest until June 3, 2004, five days late). Similarly, as to No. 26-00002-27057, MSHA explains to Premier that its contest of the proposed penalty was untimely filed with MSHA (the deadline for the contest was June 23, 2004; MSHA received Premier's contest on July 14, 2004, 21 days late). Premier did not provide any other supporting documentation, nor did it offer any explanation of why it failed to contest the penalty proposals in a timely fashion. The Secretary states that she does not oppose Premier's request for relief.

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 Premier'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 Premier'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.

Footnote:

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate docket numbers WEST 2005-188-M and WEST 2005-189-M, both captioned Premier Chemical LLC and both involving similar procedural issues. 29 C.F.R. § 2700.12.

______
Michael F. Duffy, Chairman

______
Mary Lu Jordan, Commissioner

______
Stanley C. Suboleski, Commissioner

______
Michael G. Young, Commissioner

Distribution:

Jennifer Williamson, Safety Coordinator

Premier Chemical

Highway 361

Gabbs, NV 89406

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

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