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[DOCID: f:yor200165.wais]
READ SAND & GRAVEL
YORK 2001-65-M
October 23, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
October 23, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. YORK 2001-65-M
: A.C. No. 19-01081-05502
READ SAND & GRAVEL :
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 22, 2001, the Commission received from Read Sand
& Gravel ("Read") 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).[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).
Read failed to timely submit a request for a hearing to contest
the proposed assessment.
In its request, Read states that it is enclosing a
petition to reopen the proceedings. Mot. Attached to the
request is a letter dated February 26, 2001, in which Read
states the following reasons for its contest of the proposed
civil penalties: (1) it does not own, control or manage the
subject property; (2) many of the violations were not within
the scope of Mine Act jurisdiction because they did not involve
the excavation or screening of sand; (3) some of the cited
areas are outside of the mine area; and (4) the president and
sole shareholder was "never contacted or otherwise approached
by [MSHA] as to visits, issues, or violations." Attach. Ltr.
dated February 26, 2001.
On June 29, 2001, the Commission received a response to
Read's request from the Secretary of Labor. The Secretary
contends that the first three grounds set forth by Read in its
request pertain to the merits of the underlying case, rather
than to the grounds for reopening the proposed penalty
assessment that became a final order. Resp. at 2. She submits
that although the fourth ground may pertain to reopening, Read
failed to provide sufficient detail to enable the Secretary to
determine whether reopening is warranted. Id. The Secretary
notes that MSHA received a certified mail receipt indicating
that the assessment was received by Read. Id. at 2-3 n.2.
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).
**FOOTNOTES**
[1]: On June 22, 2001, the Docket Office received a
telephone call from Debbie Johnson, an employee of the Department
of Labor's Mine Safety and Health Administration ("MSHA"),
inquiring about the status of a request filed by Read in February
2001. The Docket Office informed Ms. Johnson that the Commission
had not received the request. On that same day, Ms. Johnson
faxed to the Commission the subject request, which includes a
letter from Read to the Commission dated February 28, 2001, and a
letter from Read to Ms. Johnson dated February 26, 2001.
On the basis of the present record, we are unable to
evaluate the merits of Read's position. In the interest of
justice, we remand the matter for assignment to a judge. See,
e.g., Red Coach Trucking, 23 FMSHRC 125, 127 (Feb. 2001)
(remanding where operator made unsubstantiated allegation that it
failed to mail hearing request in part because owner was not at
the site where proposed penalty assessment was sent). The judge
shall direct Read to provide a more detailed explanation of why
it believes that circumstances regarding MSHA's alleged failure
to contact its president warrants reopening the matter, and shall
allow the Secretary an opportunity to respond. The judge shall
then determine 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
Tyler T. Foster, Controller
Read Sand and Gravel
171 VFW Drive
P.O. Box 546
Rockland, MA 02370
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