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[DOCID: f:weva9928.wais]

 
EAGLE ENERGY, INC.
January 27, 1999
WEVA 99-28


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        January 27, 1999

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :  Docket No. WEVA 99-28
                                :  A. C. No. 46-07711-03679
EAGLE ENERGY, 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
December 4, 1998, the Commission received from Eagle Energy, Inc.
("Eagle Energy"), 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).  While the Secretary
of Labor does not oppose Eagle Energy's motion requesting relief
under Fed. R. Civ. P. 60(b), the Secretary opposes Eagle Energy's
alternative argument that the operator timely filed the notice of
contest ("green card").

     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).

     Eagle Energy submits that its failure to timely contest
Citation No. 7163791 was due to the operator's reliance on a
statement made by an MSHA representative.  E. Mot. at 2.
Citation No. 7163791 alleged a violation of 30 C.F.R. � 70.101
(regulating the level of respirable dust in underground coal
mines when quartz is present) and was issued after a single air
sample was collected by the Department of Labor's Mine Safety and
Health Administration ("MSHA").  Eagle Energy states that it
received the proposed penalty assessment related to Citation No.
7163791 on October 7, 1998.  Id.  It alleges that, on October 13,
MSHA District IV Manager Pat Brady stated at an MSHA "Problem
Solving Seminar" that "all citations issued under the single
sample collection method would be vacated by MSHA."  Id.  The
operator contends that, on November 6, 1998, at a meeting at the
MSHA Office in Mt. Hope, West Virginia, Larry Ward, Eagle
Energy's vice president, asked Brady why the citation had not
been vacated.  Id.  Brady responded that he had "not `correctly
read the memo'" when he made the October 13 statement, and
informed Ward that "the citations must be first contested and
then MSHA would vacate the citations."  Id.  However, by November
6, the date Eagle Energy learned that it was required to contest
the citation before it could be vacated, the proposed penalty had
already become a final order of the Commission.  Eagle Energy
asserts that the Commission may treat its failure to timely
contest the proposed penalty as excusable neglect under Rule
60(b)(1).  Id. at 5.

     In the alternative, Eagle Energy submits that its notice of
contest was timely filed.  Id.  The operator argues that, because
it filed its notice of contest by mail, five days should have
been added to the time allowed for it to respond to MSHA's
proposed penalty - which was received on October 7 -  pursuant to
Commission Procedural Rule 8.[1]  Id.  The operator thus requests
the Commission to read Procedural Rules 8 and 5(d) - which states
that filing is effective upon mailing (29 C.F.R. � 2700.5(d)) -
together and consider the November 10 mailing of its notice of
contest timely.  Id. at 6.

     The Secretary takes exception to Eagle Energy's alternative
grounds for relief.  She asserts that, pursuant to section 105(a)
of the Mine Act, the citation and proposed penalty became a final
order of the Commission on November 6, 30 days after the date
Eagle Energy received the proposed penalty.   S. Response at 1-2
(citing 30 U.S.C. � 815(a)).  The Secretary also requests that,
should the Commission grant Eagle Energy's request to reopen, the
order be narrowly tailored to affect only Citation No. 7163791
and the related penalty since the operator offers no basis for
relief from the two other citations contained in the relevant
Proposed Assessment Form.  Id. at 2.

     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).  Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter
Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993).  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 Eagle Energy intended to contest
Citation No. 7163791, and that, but for its reliance upon an MSHA
representative's assertion, it likely would have contested the
proposed penalty.  It appears from the green card belatedly filed
with MSHA that Eagle Energy did not intend to contest the
penalties proposed for two other citations in the same proposed
assessment.  See Ex. 4.  In the circumstances presented here,
Eagle Energy's late filing of a hearing request may be considered
inadvertence or excusable neglect within the meaning of Rule
60(b)(1).  See National Lime & Stone, 20 FMSHRC at 924-25
(reopening matter when operator's late filing of hearing request
was due to mutual misunderstanding between counsel for the
operator and counsel for MSHA as to need to challenge penalty
assessment prior to judge's approval of parties' settlement);
Stillwater, 19 FMSHRC at 1022-23 (granting operator's motion to
reopen when operator failed to submit request for hearing to
contest proposed penalty due to lack of coordination between
recipient of assessment at mining facility and its attorneys,
after indicating intent to contest related citation).


**FOOTNOTES**

     [1]:   Procedural  Rule  8 provides in pertinent part: "When
service of a document is by mail,  5  days  shall be added to the
time allowed by these rules for the filing of a response or other
documents."  29 C.F.R. � 2700.8.


     Accordingly, in the interest of justice, we reopen this
penalty assessment that became a final order with respect to
Citation No. 7163791.[2]  Further, in the interest of expeditious
resolution of this matter, we hereby direct the Chief
Administrative Law Judge to order the Secretary to show cause
within 14 days of the date of his order why Citation No. 7163791
and the related civil penalty should not be vacated.  See
Keystone Coal Mining Corp., 16 FMSHRC 6, 16 (Jan. 1994); National
Mining Association v. Secretary of Labor, 153 F.3d 1264, 1269
(11th Cir. 1998).



                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution


Julia K. Shreve, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322

Steven D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006


**FOOTNOTES**

     [2]:  Given our disposition, we do not reach  Eagle Energy's
alternative  argument that its November 10, 1998 mailing  of  its
notice of contest was timely.