FMC Wyoming Corporation (ALJ decision, February 17, 1989)

Plain-English summary

FMC Wyoming contested a citation at the FMC Trona Mine and later paid a combined assessment covering that citation and three others. The Secretary moved to dismiss the contest based on the payment. FMC responded that the payment for the disputed citation was made by mistake and supported that position with an affidavit from its safety manager. Judge Michael A. Lasher, Jr. found that FMC had timely intended to contest the citation and denied the motion to dismiss.

Decision snapshot

• Cited standards: None stated in the order
• Outcome: The Secretary's motion to dismiss was denied, and FMC's timely contest could proceed.
• Key point: Payment of a proposed penalty through mistake or inadvertence did not bar a timely contest when the operator intended to challenge the citation.

Full text (FMSHRC public release)

CCASE:
FMC WYOMING V. SOL (MSHA)
DDATE:
19890217
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.) Office of Administrative Law Judges

FMC WYOMING CORPORATION,
CONTEST PROCEEDING
CONTESTANT
Docket No. WEST 88-312-R
v. Order No. 2648287; 7/13/88

SECRETARY OF LABOR,
FMC Trona Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

ORDER DENYING SECRETARY OF LABOR'S
MOTION TO DISMISS

On August 25, 1988, Contestant FMC mailed its Notice of Contest herein; such was received August 30, 1988. Thereafter, in November, 1988, the Secretary combined the proposed assessment for the Citation involved here- No. 2648482 -- with three other Citations. Such combined assessment for all four Citations was paid by FMC in one check. Thereafter, on January 30, 1989, the Secretary filed a Motion to dismiss, citing Old Ben Coal Company, 7 FMSHRC 205 (1985). In response thereto, FMC pointed out that such payment for Citation 2648482 was made in error, and supported such contention with an affidavit of its Safety Manager, Julius Jones. Mr. Jones affidavit clearly indicates that the payment of the proposed assessment for the subject Citation was made in error. The Commission's decision in Old Ben, supra, clearly points out that its ultimate conclusion that the contest should be barred because of payment of the proposed penalty, might have been different had the mine operator paid such penalty by "mistake", rather than intentionally. I conclude in the circumstances here that payment of the proposed penalty through mistake or inadvertence does not bar a mine operator from proceeding with its contest proceeding where such is timely filed. There is no question in this record that Contestant did indeed intend to contest the subject Citation. Accordingly, the Secretary's Motion to Dismiss is denied.

Michael A. Lasher, Jr.
Administrative Law Judge