FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 22, 2010

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 November 10, 2009, the Commission received from Harvey Trucking, Inc. (“Harvey Trucking”) requests to reopen two 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). On December 8 and 9, 2009, the Commission received responses from the Secretary of Labor stating that she does not oppose the requests to reopen the assessments.

            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).

            In Docket No. WEVA 2010-225, Harvey Trucking states that it mailed a request to reopen Proposed Assessment No. 000177524 on July 6, 2009, and attaches an undated copy of that letter to its current request. In that letter, Harvey Trucking states that it did not receive the proposed assessment because during the time MSHA sent the assessment, its office was closed for a period of time due to an illness. The Secretary, who does not oppose Harvey Trucking’s request, explains that the assessment was delivered on March 3, 2009, and became final on April 2, 2009. On May 20, 2009, MSHA notified the operator that the assessment was delinquent.

            In Docket No. WEVA 2010-226, Harvey Trucking contends that it mailed the contest form on August 17, 2009, but according to the Secretary, the assessment had become final on July 30, 2009. On September 17, 2009, MSHA notified the operator that the assessment was delinquent. The Secretary indicates that she does not oppose this request.

            Having reviewed Harvey Trucking’s requests to reopen and the Secretary’s responses, we conclude that the operator has not provided sufficiently detailed explanations for its failure to timely contest the proposed penalty assessments. Harvey Trucking’s general statement that the office was closed for a period of time due to an illness does not provide the Commission with an adequate basis to reopen without further elaboration. In Docket No. WEVA 2010-226, Harvey Trucking has failed to provide any explanation for its failure to timely file a contest of the assessment. Furthermore, Harvey Trucking has failed to explain why it delayed approximately six weeks and seven weeks respectively in responding to the delinquency notices sent by MSHA. Accordingly, we hereby deny without prejudice Harvey Trucking’s requests. See Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008).

            The words “without prejudice” mean Harvey Trucking may submit another request to reopen these cases so that it can contest the citations and penalty assessments. Any such request 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:

Denese Richmond

Harvey Trucking, Inc.

5383 Ashford Nellis Rd.

Ashford, WV 25009

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