Parkwood Resources, Inc.

Plain-English summary

The Secretary asked the Commission to reopen a penalty assessment involving Parkwood Resources that had become a final order. Parkwood did not oppose the request. After reviewing the circumstances, the Commission reopened the matter and directed the Secretary to issue a new proposed assessment form. Parkwood would then have 30 days after receiving the new assessment to file a contest.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b), 2700.25, and 2700.26; 30 U.S.C. §§ 801 and 815(a)
• Outcome: The final assessment was reopened, and the Secretary was directed to issue a new assessment with a new 30-day contest period.
• Key point: Reissuing a proposed assessment after reopening gives the operator a fresh opportunity to file a timely contest.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 11, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PARKWOOD RESOURCES, INC.

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Docket No. PENN 2010-609

A.C. No. 36-09224-210949-02

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On July 1, 2010, the Commission received from the Secretary of Labor a motion 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). The Secretary
indicates that the operator does not oppose the request to reopen the assessment.

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).

We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
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. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a 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).

Having reviewed the facts and circumstances of this case and the Secretary’s request, we
hereby reopen this matter. Accordingly, the Secretary shall issue a new proposed penalty
assessment form to the operator. See 29 C.F.R. § 2700.25. The operator shall have 30 days from
the date of its receipt of the proposed assessment to file its contest. See 29 C.F.R. § 2700.26.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Ronald M. Miller

Litigation Representative

Packwood Resources, Inc.

511 Railroad Ave.

Homer City, PA 15748

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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