FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001
July 21, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.
MARSH COAL COMPANY
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Docket No. KENT 2006-386
A.C. No. 15-18629-81483
Docket No. KENT 2006-387
A.C. No. 15-18629-83815
Docket No. KENT 2006-388
A.C. No. 15-18629-73612
Docket No. KENT 2006-389
A.C. No. 15-18629-75890
Docket No. KENT 2006-390
A.C. No. 15-18629-86540
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BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (AMine Act@).[1] On July 5, 2006, the Commission received a
letter from Marsh Coal Company (AMarsh Coal@) requesting that the Commission
reopen five 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). Accompanying the letter
were copies of the proposed penalty assessments at issue. The Secretary
of Labor filed a response to Marsh Coal=s letter on July 11, 2006.
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).
On November 29, 2005, and January 3, February 28, March 28, and May 2,
2006, the Department of Labor=s
Mine Safety and Health Administration (AMSHA@) issued proposed penalty
assessments to Marsh Coal. In its letter, Marsh Coal states that it is
unable to pay the assessments (Awe don=t have the money@). The company offers no
explanation, however, for its failure to timely contest the proposed
assessments. In her response, the Secretary states that Marsh Coal Aidentifies no legally cognizable
grounds for requesting reopening@ because the company=s Astated reason of not having the
money to pay does not meet any of the legal requirements of Rule
60(b)@ of the Federal Rules of
Civil Procedure. S. Resp. at 2.
We have held 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) (AJWR@). In evaluating requests to reopen
final section 105(a) orders, the Commission has found guidance in Rule
60(b) under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of inadvertence or mistake.
See 29 C.F.R. ' 2700.1(b) (Athe Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil
Procedure@); JWR, 15
FMSHRC at 787.
Because Marsh Coal=s request
for relief does not explain the company=s failure to contest the proposed
assessments, and is not based on any of the grounds for relief set forth
in Rule 60(b), we hereby deny the request for relief without prejudice.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Stanley C. Suboleski, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution
Pauline Honeycutt
Marsh Coal Company
13227 Highway 7 South
Kite, KY 41828
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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
[1] Pursuant to
Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers KENT 2006-386, KENT 2006-387, KENT 2006-388, KENT
2006-389, and KENT 2006-390, all captioned Marsh Coal Company and
all involving similar procedural issues. 29 C.F.R. ' 2700.12.