FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001
July 14, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.
THE OHIO VALLEY COAL COMPANY
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Docket No. LAKE 2006-120
A.C. No. 33-01159-10178
Docket No. LAKE 2006-121
A.C. No. 33-01159-14802
Docket No. LAKE 2006-122
A.C. No. 33-01159-26070
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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 May 30, 2006, the Commission received a
letter from the corporate safety director of The Ohio Valley Coal Company
(AOhio Valley Coal@) requesting that the Commission
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).
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 October 8 and December 10, 2003, and May 5, 2004, the Department of
Labor=s Mine Safety and Health
Administration (AMSHA@) sent to Ohio Valley Coal the
proposed penalty assessments at issue. Ohio Valley Coal states that A[c]ontest forms were filed with the
Civil Penalty Compliance Office,@ but that MSHA has told the company
that it has been unable to locate the contest forms. In her response to
Ohio Valley Coal=s letter, the
Secretary states that although she Ahas no record that the penalty
contest forms . . . were received by MSHA,@ she further states that she Ahas no basis . . . for
questioning that those forms were sent to [MSHA] as asserted@ by Ohio Valley Coal. Accordingly,
the Secretary does not oppose the company=s requests for relief.
On the record before us, we are unable to determine whether Ohio Valley
Coal timely contested the proposed penalty assessments. If the company
did so, the proposed assessments have not become final orders of the
Commission and the company=s
requests for relief would be moot. However, if Ohio Valley Coal failed to
timely contest the proposed assessments, we would not be able to grant
the relief requested. Under Rule 60(b) of the Federal Rules of Civil
Procedure,[2] any
motion for relief from a final order must be made within a reasonable
time, and in the case of mistake, inadvertence, or excusable neglect not
more than one year after the order was entered. Fed. R. Civ. P. 60(b).
Here, Ohio Valley Coal has requested reopening of proposed assessments
more than one year after they became final Commission orders if the
company did not file a timely contest. See J S Sand & Gravel,
Inc., 26 FMSHRC 795, 796 (Oct. 2004) (denying request to reopen
filed more than one year after penalty proposals had become final
orders).
Accordingly, we remand this matter to the Chief Administrative Law Judge
for a determination of whether Ohio Valley Coal timely contested the
proposed penalty assessments at issue. If it is determined that the
company did file timely contests, the Chief Judge shall order further
proceedings as appropriate pursuant to the Mine Act and the
Commission=s Procedural Rules,
29 C.F.R. Part 2700. If it is determined that Ohio Valley Coal failed to
timely contest the proposed assessments, the Chief Judge shall dismiss
these consolidated proceedings.
____________________________________
Michael F. Duffy, Chairman
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Stanley C. Suboleski, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution
Jerry M. Taylor, Corporate Safety Director
The Ohio Valley Coal Company
56854 Pleasant Ridge Road
Alledonia, OH 43902
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
[1] Pursuant to
Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers LAKE 2006-120, LAKE 2006-121, and LAKE 2006-122, all
captioned The Ohio Valley Coal Company and all involving similar
procedural issues. 29 C.F.R. ' 2700.12.
[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). 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. Id. at 787.