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

 
RB COAL COMPANY, INC.
July 18, 1995
KENT 95-596


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                            July 18, 1995

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :  Docket No. KENT 95-596
                                  :  A.C. No. 15-17077-03541
          v.                      :
                                  :
RB COAL COMPANY, INC.             :
                                  :


BEFORE: Jordan, Chairman; Doyle, Holen and Marks, 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. (1988) ("Mine Act"). On June
21, 1995, the Commission received from RB Coal Company, Inc. ("RB")
a request seeking 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), an operator has 30 days following
receipt of the Secretary's proposed penalty assessment within which to
notify the Secretary that it wishes to contest the proposed penalty.
If the operator fails to so notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission.  30 U.S.C. 
� 815(a).

     RB states that it did not mail a "Green Card" request for a
hearing until "day 45" because the card had been misplaced among its
papers on penalty assessments that it intended to pay.  RB states that
it is proceeding pro se and has recently implemented procedures for
contesting penalties.

     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).  Relief from a final order is available in
circumstances such as a party's mistake, inadvertence, or 
excusable neglect.

     On the basis of the present record, we are unable to
evaluate the merits of RB's position.  In the interest of
justice, we remand the matter for assignment to a judge to determine
whether RB 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

                              Joyce A. Doyle, Commissioner

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks, Commissioner