FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 22, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 March 10, 2010, the Commission received from Liggett Mining, LLC (“Liggett”) motions seeking to reopen three penalty assessments 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 19, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment Nos. 000203607, 000203608, and 000203613 to Liggett for 54 citations that MSHA had issued to the operator. Liggett, represented by George R. Bowman, states that upon receipt, the company’s human resources manager forwarded the assessments via email to the company’s representative to have contests filed for each, but “could not confirm with any certainty that the email transmittal was received.” Mot. at 2. Liggett asserts that its representative did not have any record of receiving the emails. Id. On April 6, 2010, the Commission received responses from the Secretary of Labor stating that she does not oppose the request to reopen the assessments.

            Having reviewed Liggett’s requests and the Secretary’s responses, we conclude that Liggett has failed to provide a sufficiently detailed explanation for its failure to timely contest the proposed penalty assessments. The operator’s explanation that it could not confirm the emails it sent to its representative were received, without any further elaboration, does not provide us with an adequate basis to justify reopening the assessment. We note in particular that Liggett failed to provide any documentation of those emails or explain its failure to do so. Nor did Liggett explain what, if anything, was done to confirm that the emails, which related to a total of $67,544 in penalties, were received by the representative. Accordingly, we deny without prejudice Liggett’s request. See, e.g., 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 Liggett to reopen Assessment Nos. 000203607, 000203608, and 000203613 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

____________________________________

Patrick K. Nakamura, Commissioner

Distribution:

George R. Bowman

Liggett Mining, LLC

P.O. Box 532

Coal City, WV 25823

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