<DOC>
[DOCID: f:wt2001511c.wais]

 
ASARCO, INC.
WEST 2001-511-M
October 31, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        October 31, 2001

SECRETARY OF LABOR,             : Docket No. WEST 2001-511-M
  MINE SAFETY AND HEALTH        : A.C. No. 02-02626-05528
  ADMINISTRATION (MSHA)         :
                                : Docket No. WEST 2001-512-M
          v.                    : A.C. No. 02-02626-05529
                                :
ASARCO, INC.                    : Docket No. WEST 2001-513-M
                                : A.C. No. 02-02626-05530
                                :
                                : Docket No. WEST 2001-584-M
                                : A.C. No. 02-02626-05528


BEFORE: Verheggen, Chairman; Jordan, Riley, 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 June 29, August 23 and October 18, 2001, Asarco, Inc.
("Asarco") filed with the Commission requests 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).[1]

     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 motions, Asarco asserts that it intended to contest
the proposed penalties, but that it did not submit green cards
because it inadvertently paid the assessments.[2] Mot. (6-29-01)
at 4, 7; Mot. (8-23-01) at 2, 6; Mot. (10-18-01) at 2, 6. Asarco
submits that the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued fifty-five citations to Asarco
following an accident at Asarco's Mission Underground mine, and
that it filed notices of contest as to all of those citations.
Mot. (6-29-01) at 3; Mot. (8-23-01) at 1; Mot. (10-18-01) at 1.
Asarco states that contests of 26 citations have been stayed
pending a criminal investigation; 5 contests have been the
subject of summary decision; and 24 contests remain pending.
Mot. (6-29-01) at 3; Mot. (8-23-01) at 1-2; Mot. (10-18-01) at 
1-2. It states that in addition to handling the litigation 
related to those citations, it has been involved in three 
discrimination cases that broadly relate to the citations. Mot. 
(6-29-01) at 3-4; Mot. (8-23-01) at 2; Mot. (10-18-01) at 2. 
Asarco explains that on January 19 and 23, 2001, Asarco 
personnel mistakenly paid the penalties for "some (but not all)"
of the citations at issue in the pending contests because they 
were unaware that Asarco management was pursuing the contests.  
Mot. (6-29-01) at 4, 6-8; Mot. (8-23-01) at 2, 5-7; Mot. 
(10-18-01) at 2, 5-7.  Asarco attached to its June 29 motion 
the declaration of Irwin P. Graham, the General Mine Supervisor 
at the Mission Underground mine; and Asarco's opposition to the 
Secretary's motion to dismiss. Asarco attached to its August 23 
motion the identical declaration of Irwin P. Graham; an order 
issued by Administrative Law Judge Richard Manning on August 9, 
2001; and the Secretary's response to Asarco's June 29 motion 
to reopen.  Asarco attached to its October 18 motion copies of 
previous attachments; the Secretary's response to Asarco's 
August 23 motion; and a letter to Judge Manning dated October 
16, 2001.

     We have held that, in appropriate circumstances, we possess
jurisdiction to reopen uncontested assessments that have become
final under section 105(a).  Jim Walter Res., Inc., 15 FMSHRC
782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (Sept. 1994).  We have also 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 Prep. Servs., Inc., 17 FMSHRC 
1529, 1530 (Sept. 1995).  In reopening final orders, the
Commission has found guidance in, and has applied "so far as 
practicable," Fed. R. Civ. P. 60(b).  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.  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 
Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar
Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater 
Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).

     On the basis of the present record, we are unable to
evaluate Asarco's position. Although Asarco lists twenty-three
citations in its motions to reopen, and states that it paid the
penalties for some, but not all, of the citations at issue in 
the contests that were not stayed, it appears that it might 
have paid twenty-six penalties.  See n.2, supra.  Because of 
this confusion in the record, and in the interest of justice, 
we remand the matter for assignment to a judge to determine 
which citations are the subject of Asarco's requests for relief 
from final order, and whether relief from the final order is 
appropriate.  If the judge determines 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.


                             Theodore F. Verheggen, Chairman
                              
                             Mary Lu Jordan, Commissioner
                              
                             James C. Riley, Commissioner
                              
                             Robert H. Beatty, Jr., Commissioner
                               

Distribution:

Mark N. Savit, Esq.
Willa B. Perlmutter, 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., 4th Floor
Arlington, VA 22203

Tamara Nelson
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
4015 Wilson Blvd., 9th Floor
Arlington, VA 22203


Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C.  20006


**FOOTNOTES**

     [1]: Asarco's June 29 request was filed in Docket Nos. 
WEST 2001-511-M, WEST  2001-512-M, and WEST 2001-513-M; its 
October 18 request was filed in WEST 2001-511-M;  and  its  
August  23 request was filed in Docket No. WEST  2001-584-M. 
The civil penalty  proceeding  identified  by Docket No. WEST 
2001-584-M  is  duplicative  of the civil penalty proceeding 
identified by Docket No. WEST 2001-511-M  because both
proceedings encompass the same proposed penalty assessment.
Accordingly, we hereby dismiss  Docket No. WEST 2001-584-M  
as duplicative of Docket No. WEST 2001-511-M.

     [2]: The proposed penalty assessments related to Docket
Nos. WEST 2001-511-M,  WEST  2001-512-M, and WEST 2001-513-M 
set forth the proposed penalties for twenty-six  citations. 
In the captions  of  its  motions  to  reopen, Asarco lists 
twenty-three citations that it wishes to reopen because they  
allegedly  are associated  with  penalties  that it paid in 
error.  It has been determined administratively that, in  
addition  to  those twenty-three  penalties,  the  penalties 
associated  with the following citations have been paid, 
although Asarco did not include the citations in its list:
Citations Nos. 07945579 (A.C. No. 02-02626-05528); 07945580 
(A.C. No. 02-02626-05528); and 07934552 (A.C. No. 
02-02626-05530).