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GOOD CONSTRUCTION
July 15, 1999
WEST 99-263-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., 6TH FLOOR

                  WASHINGTON, D. C.  20006-3868


                          July 15, 1999

SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   : Docket No. WEST 99-263-M
               Petitioner     : A. C. No. 45-03086-05511
                              :
          v.                  :
GOOD CONSTRUCTION,            : Good Portable Crusher
               Respondent     :

                         ORDER TO REOPEN
                ORDER TO SUBMIT PENALTY PETITION

     This case is before me pursuant to order  of  the Commission
dated June 21, 1999.

     The  instant  matter involves one alleged violation.   In  a
letter received on May 4, 1999, the operator seeks to reopen this
case on the ground that it did not receive notice of the proposed
penalty assessment.

     On October 21,  1997,  MSHA  issued  five  citations  to the
operator.   MSHA  proposed  penalties for four of the violations,
which the operator timely contested  and  which  are contained in
Docket Nos. WEST 98-139-M and WEST 98-178-M.  These  dockets were
assigned to Administrative Law Judge Richard Manning,  who held a
hearing on January 6, 1999, and issued a decision on February 17,
1999.

     On  December  7,  1998,  MSHA  proposed  a  penalty  for the
violation in this case and mailed the proposal by certified  mail
to  the  operator  on  that  date.   The  proposed assessment was
returned  to  MSHA  with  the  envelope marked "unclaimed".   The
operator has provided a copy of the envelope which shows that the
operator was notified of the certified  mail  on  December 16 and
21,  1998,  and  that on December 26, 1998, the notification  was
returned marked unclaimed.   The  operator states that it was not
until  February 24, 1999, that it realized  a  penalty  had  been
assessed when it received a demand letter from MSHA.  The address
on the demand letter and returned envelope are the same.

     On  June  29, 1999, I issued an order directing the operator
to  explain  why  it   failed   to   accept  the  certified  mail
notifications from the post office.  In  that  order  I held that
service  in  this  case  by  certified  mail  with  at  least two
attempted deliveries was adequate.

     On  July  12,  1999, the operator filed its response to  the
June 29 order.  The operator states that its office is located in
a rural area 8 miles  from the nearest post office.  The operator
states that it received  the first notice but due to a heavy snow
storm was unable to reach  the  post office for several days.  By
the time the operator was able to  get  to  the  post  office the
assessment package had been returned.

     I  accept  the operator's representations and find that  the
operator has satisfied  the  requirements  of  Rule  60(b)(1).  I
further  note  that as stated in the Commission's June 21  order,
the Secretary does  not  object  to operator's motion for relief.
Therefore, this case should be reopened.

     In light of the foregoing, it  is  ORDERED that this case is
hereby REOPENED.

     It  is  further ORDERED that the Solicitor  file  a  penalty
petition within 45 days of the date of this order.


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Sheila Cronan, Esq., Office of the Solicitor, U. S. Department 
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203

Edward Falkowski, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999  Broadway, Suite 1600, Denver, CO 80202-5716

James A. Nelson, Esq., 205 Cowlitz, P. O. Box 878, Toledo, WA 98591


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