FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 8, 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 August 17, 2010, the Commission received motions by counsel from Byholt, Inc. (“Byholt”) requesting to reopen 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).

            On January 7, 2010, and February 11, 2010, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000208139 and Proposed Assessment No. 000211111, respectively, to Byholt. On March 31, 2010, MSHA issued a notice to Byholt indicating that Assessment No. 000208139 had become final and now was delinquent. On May 6, 2010, MSHA issued another notice to Byholt indicating that Assessment

No. 000211111 was delinquent.

            In its motion to reopen, the President of Byholt explains that it did not file timely contests because it had no experience contesting violations previously. Byholt asserts that by the time it sought experienced counsel, the time for contest had passed. The President further states with respect to Assessment No. 000208139 that the operator was under the “mistaken[] belief that all of the [section] 104(d) citations/orders needed to be contested together and in waiting for the other three citations to be assessed, we missed the deadline.” Byholt Aff.

            The Secretary opposes reopening, contending that the operator’s professed misunderstanding of MSHA’s contest procedures is particularly inexcusable because the instructions outlining how to contest are contained on the proposed assessment itself. She also submits that ignorance of the rules and the law is not a permissible ground for reopening under Rule 60(b)(1). The Secretary also contends that Byholt failed to explain why it waited over four months in Assessment No. 000208139 (Docket No. LAKE 2010- 903-M) and three months in Assessment No. 000211111 (Docket No. LAKE 2010-904-M) to bring motions to reopen after it had received delinquency notices. The Secretary also provides that because the operator had not responded to the delinquency notices, both matters were referred to the U.S. Department of Treasury for collection.

            Having reviewed Byholt’s requests to reopen and the Secretary’s responses thereto, we determine that the operator has failed to provide a sufficient basis for the Commission to reopen the penalty assessment. The operator’s contention that it lacked experience to timely contest the proposed assessments lacks sufficient detail and does not provide adequate grounds for reopening. Significantly, Byholt has also failed to explain why it delayed approximately three and four months in responding to the delinquency notices sent by MSHA. Pinnacle Mining Co., 30 FMSHRC 1071, 1073-74 (Dec. 2008).

            Accordingly, we hereby deny without prejudice Byholt’s request to reopen. Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that Byholt may submit another request to reopen the Assessment Nos. 000208139 and 000211111. Any amended or renewed request by the operator to reopen these assessments must be filed within 30 days of this order. Any such request filed after that time will be denied with prejudice.

 /s/ Mary Lu Jordan  

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Nichelle Young, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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