FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 23, 2010

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 December 30, 2009, the Commission received a request to reopen a penalty assessment issued to City Stone, LLC (“City Stone”) 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 August 6, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000193672 to City Stone, proposing penalties for various citations. City Stone states that it “did not realize that the necessary paperwork to contest the citations had not been filed with MSHA” until it received a delinquency notice from MSHA dated October 28, 2009.

            The Secretary opposes reopening on the ground that City Stone has failed to make a showing of the exceptional circumstances that warrant reopening. The Secretary argues that specific instructions on how to contest the proposed assessment appeared on the proposed assessment form, and that there is no explanation as to why the operator did not contest the proposed assessment within 30 days after receipt.

            Having reviewed City Stone’s request to reopen and the Secretary’s response, we conclude that the operator has not provided a sufficiently detailed explanation for its failure to timely contest the proposed penalty assessment. The statement that the operator did not realize that the necessary paperwork had not been filed does not provide the Commission with an adequate basis to reopen without further elaboration. Furthermore, City Stone has failed to explain why it delayed approximately two months in responding to the delinquency notice sent by MSHA. Accordingly, we hereby deny without prejudice City Stone’s request. See Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008). The words “without prejudice” mean City Stone may submit another request to reopen the case so that it can contest the citations and penalty assessment.

            Any amended or renewed request by City Stone to reopen Assessment No. 000193672 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

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                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

James E. Young

Catamount Consulting, LLC

17970 Rte. 36

Punxsutawney, PA 15767

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