FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 25, 2011

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 April 2, 2010, the Commission received a motion by counsel to reopen a penalty assessment issued to North County Sand & Gravel, Inc.(“North County”) that became 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 June 18, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000188492 to North County. North County asserts that it timely sent in a contest form but because of “some undetermined mistake, not attributable to the operator, . . . MSHA did not receive the request for a hearing.” North County submitted the affidavit of its chief financial officer and office manager stating that she placed the completed contest form in “the self-addressed envelope that was included with the assessment” and mailed the form, without obtaining proof of mailing, before the expiration of the 30-day deadline.

            The Secretary opposes North County’s request to reopen because its explanation is inconsistent with MSHA’s procedures in that MSHA does not provide self-addressed envelopes with proposed assessments. In addition, MSHA has no record of receiving a contest form. She maintains that the operator’s contention of “some indeterminate mistake” is conclusory, lacks sufficient detail, and does not provide adequate grounds for reopening. The Secretary also notes that a delinquency notice was sent to the operator on September 10, 2009, more than six months before it filed its reopening request, and the case was referred to the Treasury Department for collection on January 7, 2010.

            Having reviewed North County’s request to reopen and the Secretary’s response thereto, we agree that the operator has failed to provide a sufficient basis for the Commission to reopen the penalty assessment. In addition, North County has failed to explain why it delayed approximately six months in responding to the delinquency notice sent by MSHA.   Accordingly, we hereby deny without prejudice North County’s request to reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that North County may submit another request to reopen the Assessment No. 000188492.   Any amended or renewed request by the operator to reopen this assessment must be filed within 30 days 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:

C. Gregory Ruffennach, Esq.

North County Sand & Gravel, Inc.

1629 K Street, N. W., Suite 300

Washington, DC 20036

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