FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 20, 2009

BEFORE: Duffy, Chairman; Jordan, 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 January 2, 2009, the Commission received a request to reopen four penalty assessments issued to C.S.A. Mining Incorporated (“CSA”) 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).

            On April 16, 2008, June 18, 2008, August 13, 2008, and September 17, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively, to CSA, alleging multiple violations and proposing civil penalties in the sum of $163,381. The president of CSA contends that the issuance of the citations and orders caused him financial and personal stress and that, consequently, CSA was unable to timely contest the proposed penalties. 

            The Secretary opposes reopening on the ground that CSA’s explanation for failing to timely file notices of contests in the four cases does not constitute the “exceptional circumstances” necessary to support reopening. The Secretary further states that reopening is unjustified here because CSA failed to identify facts which, if proven, would establish a meritorious defense. In addition, the Secretary contends that the operator fails to explain why, after it was informed that it had not contested the penalty assessments, it took as long as it did to request reopening. The Secretary explains that although MSHA sent CSA delinquency notices on July 10, 2008, September 11, 2008, November 6, 2008, and December 10, 2008, that Proposed Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively, had become delinquent, the operator did not request reopening until January 2, 2009 – between one and six months after MSHA sent the letters.

            We have held 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).

            Having reviewed CSA’s request to reopen and the Secretary’s response thereto, we agree that CSA has failed to provide an adequate basis for the Commission to reopen the four penalty assessments. CSA’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). Furthermore, CSA has failed to explain the delay in responding to the delinquency notices. Accordingly, we hereby deny without prejudice CSA’s request. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that CSA may submit another request to reopen the assessments so that it can contest the citations and penalty assessments.

___________________________________

Michael F. Duffy, Chairman

___________________________________

Mary Lu Jordan, Commissioner

___________________________________

Michael G. Young, Commissioner

___________________________________

Robert F. Cohen, Jr., Commissioner

Distribution:

Alga Jent, President

CSA Mining, Inc.

P.O. Box 126

Kite, KY 41828

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