FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

April 27, 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 July 6, 2009, the Commission received from Dix River Stone (“DRS”) a letter from its president that we construe as a request 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).

            In his letter to the Commission, DRS’s president states that DRS learned by phone from “an attorney” that it was overdue on paying three citations issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) in 2007 and 2008, and “[u]pon reviewing our files, we found that we had resubmitted these citations as contested, yet received no response.” DRS included with its request marked pages from two assessments that indicated that the penalties in connection with four citations were to be contested.

            The Secretary of Labor opposes DRS’s request to reopen the two assessments. The record shows that the operator submitted the same statement to MSHA regarding having “resubmitted” the citations, and MSHA responded that it had no record of having ever received contests of the proposed penalties.

A.        Assessment No. 000132599

            The Secretary further states that because this assessment became a final Commission order on January 3, 2008, DRS’s submission of a request to reopen approximately 18 months later should be denied. Under Rule 60(b), any motion for relief must be made within a reasonable time, and in the case of mistake, inadvertence, or excusable neglect, not more than one year after the order was entered. Fed. R. Civ. P. 60(b). Because DRS’s request to reopen was filed over a year after the proposed assessment became a final order, its request as to this assessment is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). Accordingly, DRS’s request to reopen is denied as to this assessment.

B.        Assessment No. 000166970

            The Secretary offers evidence that this assessment was received by DRS and opposes reopening it on the ground that the operator offers no explanation for why it failed to contest the assessment in a timely manner. The Secretary also notes that the request to reopen was not filed until five months had passed after MSHA sent DRS a delinquency notice regarding the assessment, and may have been prompted by efforts by the U.S. Treasury Department to collect the outstanding penalties.

            Having reviewed DRS’s request and the Secretary’s response, we conclude that DRS has not provided a sufficiently detailed explanation for its failure to timely contest the proposed penalty assessments. The statements in DRS’ request do not provide the Commission with an adequate basis to justify reopening. Accordingly, we deny the request for relief as to this assessment without prejudice. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

            Any amended or renewed request by DRS to reopen Assessment No. 000166970 must be filed within 30 days of the date of this order. Any such request filed after that time will be denied with prejudice.

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

Tommy Owens, President

Dix River Stone

376 Somerset Street

 Stanford, KY 40484

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