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[DOCID: f:wv200247c.wais]

 
CATENARY COAL COMPANY
WEVA 2002-47
April 30, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         April 30, 2002

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket No. WEVA 2002-47
          v.                    : A.C. No. 46-07178-03571
                                :
CATENARY COAL COMPANY           :


BEFORE: Verheggen, Chairman; Jordan 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 February 25, 2002, the Commission received from 
Catenary Coal Company ("Catenary") a motion made by counsel 
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).

     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 motion, Catenary contends that on October 18, 2001,
it received a proposed penalty assessment relating to Citation
Nos. 7185826-27 and 7185845-48.  Mot. at 1.  It asserts that on
October 24, 2001, its safety manager, Terry Tolley, mailed a
request for a hearing ("green card") relating to the penalties
for these citations.  Id. at 1-2; Ex.1.  Catenary received a
delinquency letter, dated January 28, 2002, from the Department
of Labor's Mine Safety and Health Administration ("MSHA") 
stating that Catenary's green card had not been received by 
MSHA until January 10, 2002.  Mot. at 1-2; Ex. 2.  The 
delinquency letter stated that, as a consequence of the 
untimely filing of the green card, the proposed penalty 
assessment had become a final order of the Commission. Ex. 2. 
Catenary states that it does not know why receipt of the green 
card by MSHA was delayed.  Mot. at 1. Attached to Catenary's 
request is a signed affidavit by Tolley supporting its 
allegations.  Ex.1.

     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).

     The record indicates that Catenary intended to contest 
the proposed penalties, and that it mailed its request for a 
hearing to MSHA within the 30-day time limit. See Ex. 1 
(Tolley Affidavit).  The affidavit attached to Catenary's 
motion is sufficiently reliable and supports the company's 
allegations. Id.  In the circumstances presented here, we find
Catenary's failure to timely file its hearing request with MSHA 
due to inadvertence or mistake within the meaning of Rule
60(b)(1). See Chantilly Crushed Stone, Inc., 22 FMSHRC 17, 
17-19 (Jan. 2000) (granting operator's motion to reopen where 
order became final because green card received late by MSHA,
but where operator believed it timely mailed green card and 
its allegations were supported by affidavit).

     Accordingly, in the interest of justice, we grant 
Catenary's unopposed request for relief to reopen the penalty
assessment that became a final order with respect to Citation 
Nos. 7185826-27 and 7185845-48.  We remand this matter to the
Chief Administrative Law Judge for assignment to a judge. On 
remand, 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
                              
                              Robert H. Beatty, Jr., Commissioner
                              

Distribution

Anne Wathen O'Donnell, Esq.
Arch Coal, Inc.
CityPlace One, Suite 300
St. Louis, MO 63141

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