<DOC>
[DOCID: f:va200014c.wais]

 
CHANTILLY CRUSHED STONE, INC.
January 20, 2000
VA 2000-14-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        January 20, 2000

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket No. VA 2000-14-M
                                : A. C. No. 44-00024-05531
CHANTILLY CRUSHED STONE, INC.   :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, 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 January 10, 2000, the Commission received from Chantilly 
Crushed Stone, Inc. ("Chantilly"), 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).  
The Secretary of Labor does not oppose the request filed by 
Chantilly.

     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).

     In its request, Chantilly states that the proposed penalty
assessments associated with Citation Nos. 7725030, 7725031,
7725032, 7725034, and 7725036 became final orders of the
Commission due to delays at the U.S. Postal Service.  Mot. at 
1-2. It explains that the proposed penalty assessments were
received by its mine on October 15, 1999, and subsequently
forwarded to its safety director, Steven Herzberg, on October 22.
Id. at 1.  Chantilly submits that Herzberg returned the request
for a hearing (green card) by first class mail on November 15,
1999.  Id.  It explains that, due to inexplicable mail delays,
perhaps attributable to increased mail volume during the
holidays, the hearing request was not received by the Department
of Labor's Mine Safety and Health Administration ("MSHA") until
December 6, 1999.  Id. at 1-2.  Chantilly states that, in a
letter dated December 29, 1999, MSHA notified Chantilly of the
final orders, stating that the hearing request had been mailed 
by Chantilly on December 2, 1999, outside of the 30-day filing
period.  Id. at 2 n.3.  Chantilly maintains that any delay in
postmarking was outside of its control.  Id.  Accordingly,
Chantilly requests that the Commission reopen the final orders 
on the basis of mistake or inadvertence pursuant to Fed. R. Civ. 
P. 60(b).  Chantilly attached to its request an affidavit by
Herzberg, the December 29 MSHA letter, and a copy of the green
card.

     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); see
also Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994).
We also have 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
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).  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 National Lime & Stone, Inc., 20
FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613,
1614-15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 
1022-23 (June 1997).

     The record indicates that Chantilly intended to contest the
proposed penalties, and that it may have timely filed its request
for a hearing.  The documents attached to Chantilly's request
appear to be sufficiently reliable and support Chantilly's
allegations.  See Ex. A (Aff. of Steven Herzberg); Ex. C (green
card signed by Herzberg and dated Nov. 15, 1999).  In the
circumstances presented here, any late filing of Chantilly's
hearing request may be considered inadvertence or excusable
neglect within the meaning of Rule 60(b)(1).[1]  See Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996)
(granting operator's motion to reopen when operator had
reasonable basis for believing that it timely mailed its hearing
request and when any late filing was due to unique mail service
at mine).


**FOOTNOTES**

     [1] In view of the fact that the Secretary does not oppose
Chantilly's  motion to reopen this matter for a hearing on the
merits, Commissioners Marks and Verheggen would grant the motion.


     Accordingly, in the interest of justice, we reopen this
penalty assessment that became a final order with respect 
to Citation Nos. 7725030, 7725031, 7725032, 7725034, and 
7725036.[2] 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
                              
                            Robert H. Beatty, Jr., Commissioner


Distribution

Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C.  20037

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


**FOOTNOTES**

     [2] Commissioner Beatty votes  to grant Chantilly's motion
to reopen because it is supported by an affidavit.