FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 14, 2008

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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) (“Mine Act”). On June 30, 2008, the Commission received from Lafarge Aggregates Southeast, Inc. (“Lafarge”) a motion by counsel seeking to reopen a penalty assessment that had become a final order 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).

            The penalty assessment at issue, No. 000143360, proposed penalties for seven citations issued to the operator in February 2008 by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). Prior to receiving the assessment, Lafarge’s Safety Director had contacted the local MSHA office to urge the agency to reduce its findings with respect to one of the citations. On March 11, 2008, MSHA issued the proposed assessment. Lafarge states that shortly thereafter the Safety Director contacted Lafarge’s counsel, informing him of the attempt to have the findings reduced and instructing him to contest the proposed penalties with respect to all of the citations. However, according to Lafarge, a different assessment, No. 000143326, was attached to the e-mail to counsel. Lafarge states that counsel did not recognize that the wrong assessment had been forwarded, and that consequently no contest to No. 000143360 was ever filed. The Secretary states that she does not oppose Lafarge’s request to reopen the proposed assessment. However, she urges the operator to take all steps necessary to ensure that, in the future, any penalty assessments are contested in a timely manner.

            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) (“JWR”). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure 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) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a 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).

            Having reviewed Lafarge’s motion and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Lafarge’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined 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.

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

William K. Doran, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

2400 N Street NW, 5^th Floor

Washington, DC 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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