FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

November 13, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On February 21 and 29, 2012, the Commission received from Active Minerals International, LLC (“Active”) two motions seeking to reopen two penalty assessments that had become final orders 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).

            Active asserts that it paid the proposed penalties in the erroneous belief that payment would end any litigation arising from the alleged violations. In her affidavit, Active’s safety director contends that a significant factor in her decision to pay the citations was that the Department of Labor’s Mine Safety and Health Administration (“MSHA”) had not opened special investigations under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Since MSHA had initiated a section 110(c) investigation in February 2012, Active seeks to reopen these matters to ensure that payment will not constitute an admission of wrongdoing on the part of the company or its agents.

            The Secretary opposes the requests to reopen, noting that the operator’s concerns are unfounded. The Secretary assures the operator that if section 110(c) proceedings are initiated in these matters, she will not argue that Active’s payment estops its agents from litigating any aspect of the underlying violations.

            Having reviewed Active’s requests and the Secretary’s responses, we conclude that the outcome of the matters before us will not prejudice any future section 110(c) proceedings. Accordingly, the motions to reopen are denied.