Secretary of Labor v. Thermocal Minerals of Idaho, LLC

Plain-English summary

Thermocal Minerals of Idaho LLC did not contest a proposed penalty within 30 days, so the assessment became a final Commission order in September 2020. The mine had recently changed management, and the departing manager did not pass the assessment paperwork to the new manager. Thermocal learned of the assessment in May 2021 through a Treasury Department collection letter. The Secretary did not oppose reopening but urged the company to prevent future late contests. The Commission found a former employee's mistake and excusable neglect arising from the management change, reopened the assessment, and remanded the case for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b) and 2700.28
• Outcome: The final assessment was reopened and the matter was remanded for further proceedings.
• Key point: A former manager's failure to transfer assessment paperwork during a management change supported reopening when the problem was unlikely to recur.

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.

THERMOCAL
MINERALS 

OF
IDAHO LLC

:

:

:

:

:

:

:

:

Docket
No. WEST 2021-0250

A.C.
No. 10-01328-519730

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 June 24, 2021, the Commission received from
Thermocal Minerals of Idaho LLC (“Thermocal”) 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) 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicate that the proposed assessment was delivered on August 17, 2020, and became
a final order of the Commission on September 16, 2020. Thermocal asserts that
the mine recently came under new management, and the previous manager failed to
relay the assessment paperwork to the new manager before leaving his position. Accordingly,
Thermocal did not learn of the assessment until May 2021, when it received a debt
collection letter from the Department of the Treasury. 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 Thermocal’s request and the Secretary’s
response, we find that the failure to timely respond was due to a
mistake of a former employee and excusable neglect arising from a change in
management, conditions which are unlikely to recur. 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/ 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:

Cassandra
Mohning

QA
& Regulatory Compliance Manager

Van
Beek Natural Science LLC

3689
460 th Street

Orange
City IA 51041

[email protected]

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]

Chief
Administrative Law Judge Glenn 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]