Secretary of Labor v. Solvay Chemicals (Commission decision, December 10, 2009)

Plain-English summary

Solvay Chemicals said it checked the contest box for one citation on the original assessment form, but MSHA had no record of receiving the contest form. MSHA did timely receive a $576 payment covering every other proposed penalty. The Secretary did not oppose reopening the one unpaid and allegedly contested penalty. The Commission reopened the assessment in the interests of justice and remanded the matter. It directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The assessment was reopened and remanded to the Chief Administrative Law Judge.
• Key point: Timely payment of every uncontested penalty may support an operator's claim that it intended to contest the one omitted citation.

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

December 10, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SOLVAY CHEMICALS

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Docket No. WEST 2009-1099-M

A.C. No. 48-01295-175586

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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. (2006) (“Mine Act”). On July 13, 2009, the Commission received from Solvay Chemicals (“Solvay”) a letter from the company’s Safety Superintendent 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).

Solvay states that it checked the box on the original assessment form for Citation No. 6420279, but that it was not noted. The Secretary states that a payment dated February 26, 2009, in the amount of $576, which paid all the proposed penalties except the proposed penalty that the operator seeks to reopen, was timely received at the Department of Labor’s Mine Safety and Health Administration (“MSHA”) Payment Processing Center in St. Louis, Missouri. However, the Secretary states that MSHA has no record of receiving the penalty contest form at its Civil Penalty Compliance Office in Arlington, Virginia. The Secretary does not oppose Solvay’s request to reopen the proposed penalty assessment.

Having reviewed Solvay’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.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner    

Robert F. Cohen, Jr., Commissioner

Distribution:

Rowdy Heiser

Safety Superintendent

Solvay Chemicals, Inc.

P.O. Box 117

Green River, WY 82935

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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