FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 25, 2010

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 September 16, 2009, the Commission received a request to reopen a penalty assessment issued to Drum Sand & Gravel, Inc. (“Drum”) 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).

            On June 9, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000187135 to Drum. Drum’s request to reopen does not address any attempt on its part to file a contest of the proposed penalty assessment or to pay any of the penalties proposed by the assessment. Rather, Drum states why it wishes to contest various citations.

            The Secretary responds that the request to reopen should be denied in that it includes no explanation for why the contest form was not timely filed. The Secretary notes that MSHA’s records show that the proposed assessment was delivered on June 16, 2009, and became a final order of the Commission on July 16, 2009.

            Because Drum’s request for relief does not explain the company’s failure to contest the proposed assessment on a timely basis, and is not based on any of the grounds for relief set forth in Rule 60(b), we hereby deny the request for relief without prejudice. See FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The words “without prejudice” mean that Drum may submit another request to reopen the assessment.  

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

Jeff Drum, President

Drum Sand & Gravel

18800 Massengill Rd.

P.O. Box 196

Harrisburg, AR 72432

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., 25^th 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