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[DOCID: f:lk200218c.wais]
WEDRON SILICA
LAKE 2002-18-M
April 30, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
April 30, 2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 2002-18-M
ADMINISTRATION (MSHA) : A.C. No. 11-01578-05569
:
v. : Docket No. LAKE 2002-19-M
: A.C. No. 11-01578-05570
WEDRON SILICA :
BEFORE: Verheggen, Chairman; Jordan 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 November 19, 2001, the Commission received from
Wedron Silica a request to reopen 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 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. Id.
On August 7, 2001, the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued Wedron Silica two
proposed penalty assessments. Mot., attachments. One proposed
penalty assessment (A.C. No. 11-01578-05569) listed 19
citations with proposed penalties in the sum of $1290. Id. The
other proposed penalty assessment (A.C. No. 11-01578-05570)
listed four citations with proposed penalties in the sum of
$558. Id. In its request, Wedron Silica, apparently proceeding
pro se, contends that it filed a green card for each proposed
penalty assessment contesting some of the penalties but that
it also paid MSHA the proposed penalties for the remaining
uncontested citations. Mot. Wedron Silica states that it was
informed by MSHA that the agency did not receive the green
cards. Id. Attached to its request are copies of the two green
cards, both signed and dated September 6, 2001 by a company
official. Id., attachment. The box on each green card
indicating that the operator wished to contest some of the
proposed penalties has been checked. Id. On the green card
listing 19 citations (A.C. No. 11-01578-05569), the operator
circled two of the citations (Citation Nos. 06141257 and
06141261) with penalties in the sum of $355. Id. Notations
by the operator on the green card indicate that of the total
of $1290 in penalties, $935 was paid and $355 was contested.
Id. On the green card listing four citations (A.C. No.
11-01578-05570), the operator circled two of the citations
(Citation Nos. 06141290 and 06141291) with penalties in the
sum of $448. Id. Notations by the operator on the green
card indicate that of the total of $558 in penalties, $110
was paid and $448 was contested. Id.
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).
Wedron Silica has offered a sufficient explanation
demonstrating that it intended to contest the penalties
relating to Citation Nos. 06141257, 06141261, 06141290, and
06141291, and that the proposed penalty assessments as to
those citations became final as a result of "inadvertence"
or "mistake." See Eighty Four Mining Co., 23 FMSHRC 1102,
1102-04 (Oct. 2001) (granting relief where operator paid some
of the penalties and allegedly submitted green card contesting
the other penalties but MSHA did not receive the green card);
Eighty Four Mining Co., 21 FMSHRC 876, 876-78 (Aug. 1999)
(same). Wedron Silica's intention to contest these penalties
is supported by the copies of the signed and dated green cards
attached to its request and by its uncontested assertion that
it paid the remaining uncontested penalties. We also note
that the Secretary does not oppose Wedron Silica's request.
In addition, no other circumstances exist that would render
a grant of relief here problematic. Accordingly, in the
interest of justice, we grant Wedron Silica's unopposed request
for relief to reopen the penalty assessments that became final
orders with respect to Citation Nos. 06141257, 06141261,
06141290, and 06141291. This case shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700.
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Wayne Williams, Plant Manager
Wedron Silica
P.O. Box 119
Wedron, IL 60557
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