FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 30, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 January 6, 2012, the Commission received from Overton Sand and Gravel Company (“Overton”) a motion for reconsideration 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 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 November 29, 2010, the Commission received from Overton a motion to reopen a penalty assessment that had become a final order of the Commission on September 24, 2010. Despite being informed by the Mine Safety and Health Administration (“MSHA”) that it must contest the assessment to schedule a conference, Overton erroneously believed that its letter requesting a conference preserved its rights. Overton also stated that it missed the initial penalty assessment because its personnel coordinator was transferred from the Overton office in August and the remaining personnel failed to forward the MSHA mail because they were instructed to look for mail from the Rocky Mount MSHA District office.

            On June 29, 2011, the Commission issued an Order denying without prejudice Overton’s motion to reopen, because it failed to provide a sufficient basis for the Commission to reopen the penalty assessment. 33 FMSHRC 1156 (June 2011). In particular, we noted that Overton had failed to explain the circumstances surrounding the transfer of its personnel coordinator, including exactly when the transfer occurred and the specific impact the transfer had on Overton’s ability to timely contest the proposed assessment. The Order stated that Overton was required to file any amended or renewed request to reopen within 30 days, or the matter would be dismissed with prejudice, regardless of the merits. The Order further stated that any renewed request to reopen would be required to include a full description of the facts supporting Overton’s claim and to establish good cause for failing to timely contest the proposed assessment.

            In its motion for reconsideration, Overton asserts that its counsel never received the Commission’s Order. Overton’s counsel states that she became aware of the Order on August 30, 2011, after reading about it in a mine safety publication. Counsel contacted Overton’s personnel coordinator, who indicated he would discuss it with management. On January 5, 2012, Overton’s safety director contacted its counsel and it was discovered that the personnel coordinator never shared the information about the Commission’s Order with management.

            The Secretary of Labor opposes the motion for reconsideration because it does not provide the detailed explanation required by the Order. The Secretary did not receive the Order, and therefore she does not question Overton’s claim that it did not learn of the Order until August 30, 2011. However, the Secretary notes that after learning of the Order, the operator waited for more than four months before filing a motion for reconsideration. The Secretary further asserts that the operator’s inadequate internal procedures are not an adequate explanation for delay.

            The Commission has made it clear that where a failure results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). In this case, we conclude that the lack of any procedure for reliable communication between counsel and management represents an inadequate or unreliable internal processing system. Moreover, Overton’s motion for reconsideration failed to answer the Commission’s questions, as required by the Order, and establish good cause for failing to timely contest the proposed assessment.

            Having reviewed Overton’s request and the Secretary’s response, we conclude that Overton has failed to establish good cause for reopening the proposed penalty assessment, and deny its motion to reopen with prejudice. We hereby deny Overton’s motion for reconsideration. Accordingly, this case is dismissed.

 /s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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