FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 30, 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 August 4, 2009, the Commission received from General Chemical (Soda Ash) Partners (“General Chemical”) a letter 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).

            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).

            The Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued the proposed assessment on April 28, 2009. General Chemical claims that it requested a conference for several citations, including Citation No. 6420307 at issue here, and that it sent the contest form to MSHA covering the citation at issue. It states that it received a delinquency notice on July 21, 2009, indicating that the assessments were past due. Within two weeks of the notice, General Chemical sought reopening before the Commission.

            The Secretary states that she does not oppose the reopening of the proposed penalty assessment, although she has no record of receiving the contest in this case. She also notes that a request for a conference does not alter the deadline or procedure for contesting a proposed penalty.

            Having reviewed General Chemical’s request and the Secretary’s response, in the interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.§ 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

                                                                                    ____________________________________

                                                                                    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:

Brian Hacker

Safety/Sec.Training Specialist

General Chemical (Soda Ash) Partners

Green River Soda Ash Operation

P.O. Box 551,

Green River, WY 82935-0551

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