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[DOCID: f:ce2001355.wais]
THE DOE RUN COMPANY
September 27, 2001
CENT 2001-355-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 27, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2001-355-M
: A.C. No. 23-00458-05576
THE DOE RUN COMPANY :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
ORDER
BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On July 17, 2001, the Commission received from the Doe Run
Company ("Doe Run") a request 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 has 30
days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. 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).
In its request, Doe Run, through counsel, asserts that its
failure to timely submit a request for a hearing on the proposed
penalty assessment to the Department of Labor's Mine Safety and
Health Administration ("MSHA") was due in part to its mistake and
in part to a miscommunication with MSHA. Mot. at 2. On October
10, 2000, MSHA issued Citation No. 7884600 to Doe Run. Id. at 1;
Ex. 1 at 2. The operator contends that it requested and attended
a conference on January 26, 2001, with MSHA concerning the
citation. Mot. at 2. On April 23, 2001, MSHA issued a proposed
penalty assessment relating to the citation. Id., Ex. 1. Doe
Run asserts that, although it received the proposed penalty
assessment on or about April 30, 2001, due to an internal
processing mistake, the proposed assessment did not reach Dave
Brown, its safety director, until June 5, 2001, almost a week
after the 30-day deadline for filing a timely request for a
hearing. Mot. at 2; 30 U.S.C. � 815(a). Doe Run subsequently
made a request for a hearing which was received by MSHA on June
19, 2001. Mot., Ex. 2 at 1. Doe Run contends that, based on his
impression from the conference with MSHA on January 26, 2001,
Brown was not expecting a proposed penalty assessment to be
issued until another conference with MSHA occurred after the
agency issued a Tech Support report on the accident associated
with the citation. Mot. at 2. Doe Run asserts that, because
such an additional conference had not occurred when MSHA issued
the proposed penalty assessment on April 30, 2001, Brown "did
not specifically look for it." Id.
We have held that, in appropriate circumstances, we possess
jurisdiction to reopen uncontested assessments that have become
final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC
782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994). We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing
of adequate or good cause for the 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 reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed.
R. Civ. P. 60(b). 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. In
accordance with Rule 60(b)(1), we previously have afforded a
party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704,
705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-
92 (Sept. 1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23
(June 1997).
On the basis of the present record, we are unable to
evaluate the merits of Doe Run's position. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether relief from the final order is appropriate.
See, e.g., Red Coach Trucking, 23 FMSHRC 125, 125-27 (Feb. 2001)
(remanding where operator failed to timely request hearing
because of internal mistake and confusion about Commission
procedures); Cent. Wa. Concrete, Inc., 21 FMSHRC 146, 148 (Feb.
1999) (remanding where operator received penalty assessment, but
such receipt was not brought to management's attention until
deadline for filing green card had passed); Ky. Stone, 19 FMSHRC
1621, 1622-23 (Oct. 1997) (remanding where operator failed to
contest penalty assessment due to its accounts payable
department's internal processing error of penalty assessment).
If the judge determines that such relief is appropriate, this
case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Chairman Verheggen and Commissioner Riley, concurring in result:
We would grant Doe Run's request for relief here because the
Secretary does not oppose it, Doe Run has offered a sufficient
explanation for its failure to timely respond, and no other
circumstances exist that would render a grant of relief here
problematic. However, in order to avoid the effect of an evenly
divided decision, we join in remanding the case to allow the
judge to consider whether Doe Run has met the criteria for relief
under Rule 60(b) of the Federal Rules of Civil Procedure. See
Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on
other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that the
effect of a split Commission decision is to leave standing the
disposition from which relief has been sought).
Theodore F. Verheggen, Chairman
James C. Riley, Commissioner
Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006