FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 22, 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 May 1, 2008, the Commission received from Palmer Coking Coal Company (“Palmer”) a letter, dated April 25, 2008, seeking to reopen a penalty assessment that may have 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).

            On March 15, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000113621 to Palmer, which proposed civil penalties for four citations, including Citation Nos. 6396248 and 6396249. Palmer states that on March 26, 2007, its manager mailed its contest of the proposed penalties for Citation Nos. 6396248 and 6396249 to MSHA. MSHA issued a delinquency notice to Palmer on June 22, 2007. Palmer has submitted a copy of a letter to MSHA dated June 25, 2007, in which it alleged that it timely contested the proposed assessment. Palmer alleges further that in October 2007, it received a notice from the U.S. Department of the Treasury stating that it failed to timely contest Proposed Assessment No. 000113621. Palmer submits that it responded by mailing letters to the U.S. Department of the Treasury and to MSHA explaining that its contest had been timely filed.

            While the Secretary states that she does not oppose Palmer’s request to reopen, she states that she has no record of receiving Palmer’s contest of the penalty assessment.

            On the record presently before us, we are unable to determine whether Palmer timely contested the proposed penalty assessment. Specifically, it is unclear on what date, between March 15 and 26, 2007, Palmer received the proposed penalty assessment. It is also unclear on what date Palmer contested the proposed assessment, particularly since the Secretary indicates that she has no record of receiving such a contest. If the company timely contested the proposed assessment, the proposed assessment has not become a final order of the Commission and the company’s request for relief would be moot. DS Mine & Dev. LLC, 28 FMSHRC 462, 463 (July 2006).

            If Palmer failed to timely contest the proposed assessment, however, the Commission may not be able to grant the relief requested. Id. Under Rule 60(b) of the Federal Rules of Civil Procedure, any motion for relief from a final order must be made within a reasonable time, and in the case of mistake, inadvertence, or excusable neglect not more than one year after the order was entered. Fed. R. Civ. P. 60(b). Depending upon the date that Palmer received the proposed assessment, the proposed assessment could have become a final Commission order between April 14 and April 25, 2007. Palmer’s letter requesting a reopening of the proposed assessment is dated April 25, 2008. Thus, Palmer may have requested a reopening of the proposed assessment more than one year after it became a final Commission order. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004) (denying request to reopen filed more than one year after penalty proposals had become final orders).

            Accordingly, we remand this matter to the Chief Administrative Law Judge for a determination of whether Palmer timely contested the proposed penalty assessment at issue. In making this determination, the Chief Administrative Law Judge should obtain from Palmer any proof of mailing of its March 26, 2007, contest of the proposed assessment, or any other documentation (e.g., an affidavit) that supports the operator’s assertion that it was mailed on that date. If it is determined that the company did file a timely contest, the Chief Judge shall order further proceedings as appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. If it is determined that Palmer failed to timely contest the proposed assessment, the Chief Judge shall determine whether to dismiss this proceeding, or whether good cause exists for granting relief from the final order.

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

William Kombol, Mngr.

Palmer Coking Coal Co.

31407 Highway 169

P.O. Box 10

Black Diamond, WA 98010

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

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