<DOC>
[DOCID: f:stillwat.wais]
STILLWATER MINING COMPANY
June 9, 1997
WEST 97-179-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 9, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 97-179-M
: A.C. No. 24-01490-05583
STILLWATER MINING COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
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 May 16, 1997, the Commission received from Stillwater Mining
Company ("Stillwater") a request 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). It has been
administratively determined that the Secretary of Labor does not
oppose the motion for relief filed by Stillwater.
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).
Stillwater asserts that it intended to contest this citation
and the related penalty but did not submit a request for hearing
("Green Card") because the assessment was sent by MSHA to the
company directly at its mining site, rather than to its attorneys
of record. Stillwater contends that after receiving Citation No.
7900016 on May 24, 1996, it notified the Secretary on June 13,
1996, through its attorneys, that it intended to contest the
citation and any "proposed penalty assessments related to [that]
citation." Mot. at 1-2 & Attach. 2. Stillwater's attorneys
entered their appearance in the contest proceeding (Docket No.
WEST 96-281-RM), and requested that future "correspondence,
pleadings, communications, and proposed penalties concerning this
matter . . . be directed" to their attention. Mot. at 2 &
Attach. 2. On April 28, 1997, more than eight months after
Administrative Law Judge Richard W. Manning entered an order
staying further proceedings in the case until the Secretary filed
a related civil penalty proceeding, counsel for the Secretary
indicated that MSHA's Office of Assessments had advised him that
a proposed penalty assessment for eleven citations (including
Citation No. 7900016) had been issued on October 10, 1996,
assessing a total penalty of $550 ($50 for Citation No. 7900016),
and that payment for all the citations had been received by
November 7, 1996. Mot. at 2-4 & Attachs. 3, 9, 10. Stillwater
asserts that, despite the request in its notice of contest to
communicate directly with its counsel of record, MSHA instead
mailed this proposed penalty assessment to it directly at the
mine site. Mot. at 4. Stillwater contends that, as a result, it
unknowingly paid the assessment of $550 for the eleven
violations, including a $50 penalty for Citation No. 7900016,
despite its intention to contest this citation and any related
penalty. Id. at 5. Attached to Stillwater's motion are various
documents and correspondence relating to the underlying
proceeding involving its contest of Citation No. 7900016, which
indicate that Stillwater intended to contest the citation and any
related penalty assessment. Stillwater asserts that it is
entitled to relief under Rule 60(b)(1), (3), and (6) of the
Federal Rules of Civil Procedure, Fed. R. Civ. P. 60(b)(1), (3),
and (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). Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994). We have
also noted 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 Services, Inc., 17 FMSHRC 1529, 1530 (September
1995). In accordance with Rule 60(b)(1), we have previously
afforded a party relief from a final order of the Commission on
the basis of inadvertence or mistake. See General Chemical
Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (September 1996).
It appears from the record that Stillwater intended to
contest this citation and any related penalty and that, but for
an apparent lack of coordination between the recipient of the
proposed penalty assessment at its mining facility and its
attorneys, it would likely have returned the Green Card and
contested this proposed penalty assessment. While Stillwater
does not deny receiving the proposed assessment sent by MSHA to
the mine site, in the circumstances presented here (in
particular, the Secretary's failure to send the penalty
assessment to Stillwater's counsel, despite their explicit
request), its failure to submit the request for hearing as to
this particular penalty assessment, and payment of the proposed
assessment, can be reasonably found to qualify as "inadvertence"
or "mistake" within the meaning of Rule 60(b)(1). See
Westmoreland Coal Co., 11 FMSHRC 275, 276 (March 1989) (operator
asserted that penalty had been paid in error); Tug Valley Coal
Processing, 16 FMSHRC 216, 216-17 (February 1994) (same);
Drummond Co., 17 FMSHRC 883, 883-84 (June 1985) (operator
mistakenly circled on Green Card the citations and orders it was
not contesting rather than those it wished to contest); Rivco
Dredging Corp., 10 FMSHRC 624, 624-25 (May 1988) (operator filed
notice of contest as to alleged violations, but was unaware that
contest of civil penalty proposals was also required).
Accordingly, in the interest of justice, we grant Stillwater's
unopposed request for relief and reopen this penalty assessment
that became a final order with respect to Citation No. 7900016.
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