Secretary of Labor v. Nyrstar Tennessee Mines Gordonsville, LLC

Plain-English summary

Nyrstar paid $12,297 for 24 citations without filing a timely penalty contest. A superintendent stated that he had believed the operator and MSHA had reached an agreement on abating each violation, but no agreement was ultimately reached and citation-termination issues remained open. The Secretary did not oppose reopening because further Commission proceedings would allow the parties to litigate any issues they could not resolve. The Commission found that the missed contest resulted from a mistake. It reopened the paid assessment and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The paid assessment was reopened and remanded for further penalty proceedings.
• Key point: Full payment did not prevent reopening where an affidavit showed that a mistaken belief about an abatement agreement caused the missed contest.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH      

ADMINISTRATION
(MSHA)           

v.

NYRSTAR
TENNESSE MINES

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Docket
No. SE 2022-0118

A.C.
No. 40-00864-551693

GORDONSVILLE,
LLC                                :

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On May 19, 2022, Nyrstar Tennessee Mines
Gordonsville, LLC, filed a motion to reopen a penalty assessment that it
previously paid.

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 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).

The
Secretary of Labor reports that on April 12, 2022, the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) timely received full payment
($12,297) for the penalties associated with the 24 citations at issue.

Nyrstar
asserts that its failure to contest the penalties was a mistake. Along with the
motion to reopen, Nyrstar attached an affidavit from a superintendent stating
that he did not timely contest the penalties because he believed that the
operator and MSHA had reached an agreement on the abatement of each violation
at issue. However, no agreement was ultimately reached.  As the Secretary
acknowledges, as of the time of filing, the parties have still not yet reached
an agreement to terminate the citations. The Secretary does not oppose the
motion to reopen, noting that reopening will allow the parties to contest
citations before the Commission if they are not able to resolve the outstanding
issues.   

Having
reviewed Nyrstar’s request and the Secretary’s
response, we find that the operator’s failure to timely file was the
result of a mistake. We hereby reopen this matter,
and remand the case 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Ave. N.W., Suite 520N

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Donna Vetrano
Pryor, Esq.

Husch Blackwell
LLP

1801 Wewatta
Street, Suite 1000

Denver, CO  80202

[email protected]