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[DOCID: f:eastnord.wais]
EASTERN ASSOCIATED COAL CORP.
March 19, 1997
WEVA 97-81
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 19, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 97-81
: A.C. No. 46-01456-04119
EASTERN ASSOCIATED COAL CORP. :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
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 March 4, 1997, the
Commission received from Eastern Associated Coal Corp.
("Eastern") 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). It has been
administratively determined that the Secretary of Labor does not
oppose the motion for relief filed by Eastern.
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).
Eastern states that it failed to submit its request for a
hearing ("Green Card") to the Department of Labor's Mine Safety
and Health Administration ("MSHA") within 30 days following
receipt because a substitute employee who was working in its
mailroom temporarily failed to refer the proposed assessment to
its legal department, and that the error was not discovered until
almost two months later. Eastern requests the Commission to
reopen this matter. Attached as exhibits to Eastern's motion are
copies of the certified mail receipt that accompanied the
Proposed Assessment Form from MSHA, and affidavits from the
employee in charge of its mailroom and an administrative
assistant and an attorney in its legal department.
The Commission has held that, in appropriate circumstances
and pursuant to Fed. R. Civ. P. 60(b), it possesses jurisdiction
to reopen uncontested assessments that have become final under
section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-
89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(September 1994).
The Commission has 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 Preparation Services, Inc., 17 FMSHRC 1529, 1530
(September 1995). In accordance with Rule 60(b)(1), the
Commission has previously afforded a party relief from a final
order of the Commission on the basis of inadvertence or mistake.
See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996);
Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (September
1996).
On the basis of the present record, we are unable to
evaluate the merits of Eastern's position. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Eastern has met the criteria for relief
under Rule 60(b). 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, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
**FOOTNOTES**
[1]: Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.