<DOC>
[DOCID: f:ce2001374.wais]

 
HEARTLAND CEMENT COMPANY
September 27, 2001
CENT 2001-374-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 2001-374-M                   
                                 : A.C. No. 14-00162-05575
HEARTLAND CEMENT COMPANY         :



BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
        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.  (1994)  ("Mine  Act").
On August 21, 2001, the Commission received from Heartland Cement
Company ("Heartland") 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).  The
Secretary of Labor does not oppose Heartland's request for
relief.

     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, Heartland, 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 to an internal processing
error.  Mot. at 1-2.  It contends that at around the time it
received the proposed penalty assessment, it also received seven
other penalty assessments covering a total of 124 citations.  Id.
It asserts that it contested the other seven penalty assessments
in a timely manner but, due to the large amount of correspondence
with MSHA at that time, it inadvertently neglected to contest the
penalty assessment which is the subject of its motion to reopen.
Id. at 2-4.  It explains that it only became aware of its error
after it received a delinquency notice from MSHA on or about
August 7, 2001.  Id. at 1-3.  Heartland attached to its request
the notarized affidavit of William D. Bertie, environmental and
safety engineer for Heartland, and a copy of the delinquency
notice from MSHA, dated August 1, 2001.  Id., Exs. A & B.

     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).

     The record indicates that Heartland intended to contest the
proposed penalty assessment, but that it failed to do so in a
timely manner due to an internal oversight.  The declaration
attached to Heartland's request is sufficiently reliable and
supports Heartland's allegations.  In the circumstances presented
here, we treat Heartland's late filing of a hearing request as
resulting from inadvertence or mistake.  See Lehigh Portland
Cement Co., 22 FMSHRC 1186, 1186-88 (Oct. 2000) (granting
operator's request to reopen where operator alleged its failure
to timely request a hearing was due to internal processing error
and operator's assertions were supported by affidavit); Martin
Marietta Aggregates, 22 FMSHRC 1178, 1178-1180 (Oct. 2000)
(granting operator's request to reopen where operator alleged
that it inadvertently sent a hearing request to the wrong MSHA
address and its assertions were supported by affidavit).

     Accordingly, in the interest of justice, we grant
Heartland's request for relief, reopen the penalty assessment
that became a final order, and remand to the judge for further
proceedings on the merits.  The case shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700.

                            Theodore F. Verheggen, Chairman

                            Mary Lu Jordan, Commissioner

                            James C. Riley, Commissioner

                            Robert H. Beatty, Jr., Commissioner


Distribution

Bradley S. Hiles, Esq.
R. Lance Witcher, Esq.
Blackwell, Sanders, Peper, Martin, LLP
720 Oliver Street, Suite 2400
St. Louis, MO 63101

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