FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 22, 2009

BEFORE: Duffy, Chairman; Jordan, and Young, 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 8, 2009, the Commission received from WKJ Contractor’s Inc. (“WKJ”) a motion by counsel 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).

            On July 22, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000157695 to WKJ, proposing a civil penalty for Citation No. 7505222. In its request, WKJ states that a copy of an attached “notice of appeal” was mailed to MSHA’s office in Barbourville, Kentucky, on September 2, 2008. The attached document states that it serves to appeal the citation. The Secretary states that she does not oppose reopening the proposed penalty assessment.

                        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).

             Although it appears that the operator may have attempted to contest Citation No. 7505222 by mailing its notice of contest to MSHA’s office in Barbourville, Kentucky (see 29 C.F.R § 2700.20(b)), the operator fails to provide an explanation for why it failed to timely contest the proposed penalty assessment by returning the completed assessment form to MSHA’s Civil Penalty Compliance Office in Arlington, Virginia, as instructed by the assessment form (see also 29 C.F.R. § 2700.26).

            Because WKJ’s request for relief does not explain the company’s failure to contest the proposed assessment on a timely basis, we hereby deny the request for relief without prejudice. See FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007).  

____________________________________

Michael F. Duffy, Chairman

____________________________________

Mary Lu Jordan, Commissioner

____________________________________

Michael G. Young, Commissioner    

Disttribution

James W. Craft, II, Esq.

21 North Webb Avenue

Whitesburg, KY 41858

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