Secretary of Labor v. Imerys Carbonates USA, Inc.

Plain-English summary

MSHA issued Imerys 130 citations during a nine-week inspection and divided them between two proposed assessments. Imerys timely mailed two contest packages, but sent them with payments to MSHA's St. Louis address instead of the contest address in Arlington. Only the first package was forwarded, leaving many intended contests unprocessed until the company discovered the mistake. The Secretary did not oppose reopening. The Commission reopened the assessment and remanded it for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 30 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: A timely contest mailed to MSHA's payment address supported relief when only part of the submission was forwarded for processing.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C.  20004‑1710

SECRETARY OF LABOR,                                :

MINE SAFETY AND HEALTH                    
:

ADMINISTRATION (MSHA)                       
:

:

v.                                                
:       Docket No.  SE 2020-0140

:       A.C. No. 01-00011-502106

IMERY’S CARBONATES USA, INC.              :

:

BEFORE:  Rajkovich, Chairman; Althen and Traynor,
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 February 26, 2020, the Commission received
from Imery’s Carbonates USA, Inc. (“Imery”) 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), 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).

During
an inspection spanning nine weeks from June to August 2019, Imery received 130
citations from the Department of Labor’s Mine Safety and Health Administration
(“MSHA”).  The record indicates that the citations were divided between two proposed
assessments.  The first assessment was received by Imery on October 1, 2019, and
the second was delivered on October 21, 2019.  The assessment in question became
a final order of the Commission on November 21, 2019.  Imery claims that it
timely submitted its contest of the citations in two packages, one sent on October
16, 2019, and the other on October 26, 2019.  However, the operator asserts,
and MSHA has confirmed, that the contests were inadvertently sent along with
the payment of the uncontested citations to MSHA’s address in St. Louis,
Missouri, rather than to Arlington, VA. 

Imery
claims that it learned of its mistake in early January 2020 when it discovered
that MSHA had only processed 40 of the 72 contested citations as “under
contest,” and that only its first contest package had been forwarded to the
Office of Assessments from the St. Louis office. [1]  
MSHA sent a delinquency notice on January 6, 2020.  Imery has not filed any
other motions to reopen with the Commission in the last two years.  The
Secretary does not oppose the request to reopen, but urges the operator to take
steps to ensure that future penalty contests are timely filed.

Having
reviewed Imery’s request and the Secretary’s response, we find that the
operator inadvertently mailed its contest form to MSHA’s St. Louis office along
with its uncontested penalty payments.  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.  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/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor, III,
Commissioner

Distribution:

Avi Meyerstein

Brian Hendrix

Charles Fleischmann

HUSCH BLACKWELL LLP

750 17th Street, NW, Suite 900

Washington, D.C. 20006-4675

[email protected]

Ryan Florio

Litigation and Regulatory Counsel

IMERYS North America

100 Mansell Court East, Suite 300

Roswell, Georgia 30076

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202-5450

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1]   The citations that were processed as contested by
MSHA have been docketed at the Commission under Docket Nos. SE 2020-58 and SE
2020-59.  On February 11, 2020, the assigned Administrative Law Judge granted
Imery’s unopposed Motion to Stay those proceedings pending the outcome of this
Motion to Reopen.