<DOC>
[DOCID: f:kent98231.wais]

 
P&P INC. OF KENTUCKY
July 10, 1998
KENT 98-231


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          July 10, 1998

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :  Docket No. KENT 98-231
                                :  A.C. No. 15-15845-03541
P&P INC. OF KENTUCKY            :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, 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 
June 12, 1998, the Commission received from P&P Inc. of Kentucky
("P&P") a request to reopen three 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).  It has been dministratively
determined that the Secretary of Labor does not oppose the motion
for relief filed by P&P.

     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).

     P&P asserts that its late filing of a hearing request to
contest the proposed penalties for the violations alleged in
Citations Nos. 4020604, 4007060, and 4490920 was due to
miscommunication between the operator and its counsel.  Mot. 
at 1. According to P&P, the Secretary of Labor's Mine Safety 
and Health Administration ("MSHA") issued 21 citations 
following a fatal accident at the Martiki Mine on September 19,
1997.  Id. at 2. P&P contends that on October 30, 1997, it 
filed a notice to contest 19 of those citations, and that on
February 12, 1998, MSHA filed proposed assessments as to all but
the three citations here at issue.  Id.  P&P asserts that it
timely contested each of those proposed assessments.  Id.  P&P
alleges that on March 27, it received MSHA's proposed assessments
on the remaining three citations, and that on April 10, P&P
forwarded a copy of this proposed assessment to its counsel.  Id.
P&P asserts that on June 3, MSHA issued it a notice indicating
that the proposed assessments for those three citations had
become final.  Id. at 3.  The operator submits that it and 
its counsel each believed the other would send the notice of
contest, and, as a result, the notice of contest was not timely
sent.  Id. at 2. P&P explains that due to this misunderstanding,
its hearing request was not received by MSHA until June 11 - 45
days after the 30-day deadline.  Id.  P&P asserts that it is
entitled to relief under Fed. R. Civ. P. 60(b)(1) and 60(b)(6).

     We have held that, in appropriate circumstances and pursuant
to Rule 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final under section 105(a).  Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter
Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993).  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
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 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 Peabody Coal Co., 19 FMSHRC
1613, 1614-15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 
1021, 1022-23 (June 1997); General Chem. Corp., 18 FMSHRC 704,
705 (May 1996).

     The record indicates that P&P intended to contest the three
citations here at issue and that, but for an apparent lack of
coordination with its counsel, it likely would have timely
submitted the hearing request and contested the proposed penalty
assessments for these citations.  In the circumstances presented
here, P&P's late filing of a hearing request qualifies as
inadvertence or mistake within the meaning of Rule 60(b)(1). See
Peabody, 19 FMSHRC at 1614-15 (granting operator's motion to
reopen when failure to timely submit notice of contest resulted
from lack of coordination between mine and operator's counsel);
Stillwater, 19 FMSHRC at 1022-23 (granting operator's motion to
reopen when operator failed to submit request for hearing to
contest proposed penalty due to lack of coordination between
recipient of assessment at mining facility and its attorneys,
after indicating intent to contest related citation).

     Accordingly, in the interest of justice, we grant P&P's
unopposed request for relief and reopen these penalty assessments
that became final orders with respect to Citation Nos. 4020604,
4007060, and 4490920.  The 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
                              
                              Theodore F. Verheggen, Commissioner
                              
                              Robert H. Beatty, Jr., Commissioner
                              

Distribution

Mark N. Savit, Esq.
Ruth L. Ramsey, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C.  20037

Donna E. Sonner, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215

Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203