<DOC>
[DOCID: f:cn200223.wais]

 
PEA RIDGE IRON ORE COMPANY
January 17, 2002
CENT 2002-23-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        January 17, 2002

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 : Docket No. CENT 2002-23-M
          v.                     : A.C. No. 23-00454-05587
                                 :
PEA RIDGE IRON ORE COMPANY       :



BEFORE: Verheggen, Chairman; Jordan 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 November 5, 2001, the Commission received from Pea Ridge Iron
Ore Co. ("Pea Ridge") 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, Dwight A. Miller, Pea Ridge's executive 
vice president and general counsel, asserts that, due to 
personnel lay-offs at the time Pea Ridge received the proposed 
penalty assessment, it failed 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").  Mot.  
A copy of the proposed penalty assessment and the delinquency 
letter from MSHA were attached to its request. It also attached 
an unsigned statement by T.D. Gallagher that Pea Ridge ceased 
mining on August 27, 2001, and has laid off many of its 
employees. Gallagher Statement dated Sept. 25, 2001.  The 
statement also requests that the penalties be dropped because 
Pea Ridge's secured lender has frozen its assets and it cannot 
pay its outstanding bills.  Id.  There is no indication in the 
statement or other record documents what connection Gallagher 
has to Pea Ridge.

     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 Pea Ridge'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 Georges Colliers, Inc., 22 FMSHRC 939, 939-41 (Aug. 2000)
(remanding to judge where operator misfiled proposed penalty
assessment due to changes in office personnel); E. Ark.
Contractors, Inc., 21 FMSHRC 981, 981-83 (Sept. 1999) (same). 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, dissenting:

     I would grant Pea Ridge's request for relief. First, I note
that the Secretary does not oppose the operator's motion. Nor do
I find any other circumstances that would render a grant of
relief here problematic.  Under these circumstances, I thus fail
to see the need or utility for remanding this matter.


                            Theodore F. Verheggen, Chairman


Distribution

Dwight A. Miller, Vice President
Pea Ridge Iron Ore Company, Inc.
231 South Bemiston Avenue, Suite 1100
St. Louis, MO 63105

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