FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

January 18, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On July 28, 2011, the Commission received from Bresee Trucking Co., Inc. (“Bresee”) two motions seeking to reopen two 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).

            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).

            The record indicates that the proposed assessments were delivered on March 28, 2011, and became final orders of the Commission on April 27, 2011. Bresee asserts that it was not aware of the proposed assessments until after the 30 day time limit to contest had expired. Bresee states that the proposed assessments were mailed to “Rd # 708 Seminary,” while Bresee’s address of record is “P.O. Box 560.”

            The Secretary opposes the requests to reopen and notes that MSHA’s assessment center, Wilkes-Barre, PA, received specific mailing instructions from Bresee on October 29, 2008, to use the “Rd # 708 Seminary” address. The Secretary provided a copy of these mailing instructions. The Secretary states that the proposed assessments were mailed to “Rd # 708 Seminary” by FedEx on February 25, 2011, and were returned undelivered. The proposed assessments were mailed again to the same address by the U.S. Postal Service, certified mail, and were signed for by Hillis Bresee on March 28, 2011. Moreover, the Secretary asserts that this same address has been used by MSHA for mailing all proposed assessments since 2008, and Bresee has been receiving, and contesting, these proposed assessments. Therefore, the Secretary states that the operator has failed to adequately explain why the proposed assessments should not be considered to have been properly served.

            On September 28, 2011, the Commission sent Bresee a letter asking it to identify how and when it discovered that the penalties were not timely contested, what office procedures were implemented to prevent such failure in the future, and respond to the Secretary’s assertions regarding Bresee’s address of record. In response, Bresee asserts that it maintains a mailbox at the local post office and has also publicized a physical address, which has no mailbox, for special delivery services, such as FedEx. Bresee further states that these proposed assessments were actually delivered to another mailbox, not assigned to Bresee.

            The Commission has made it clear that where a failure to contest a proposed assessment results from an inadequate or unreliable internal processing system, the operator has not established grounds for reopening the assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). It is the operator’s responsibility to maintain an accurate address of record with MSHA, and notify MSHA within 30 days of any changes to its information. 30 C.F.R. §§ 41.10, 41.12. In this case, the address provided by the operator in 2008, which it now claims to be only for FedEx deliveries, returned mail as undelivered by FedEx. At the same time, Bresee’s owner has been signing for U.S. Postal Service mail at this same address, which it now claims has no mailbox. We conclude that the operator’s lack of procedure to follow up on received mail and determine whether and when proposed assessments should be contested represents an inadequate or unreliable internal processing system. Sloss Indus., Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007); Gibbs v. Air Canada, 810 F. 2d 1529, 1537 (11th Cir. 1987). We also note that this type of failure appears to be part of a pattern for Bresee, as shown by its previous motions to reopen five penalty assessments which had become final orders of the Commission due to unsuccessful delivery attempts, where the Secretary and the Commission urged Bresee to keep MSHA informed of its address of record. Bresee Trucking Co., Inc., 31 FMSHRC 804, 805 (Jul. 2009).

            Having reviewed Bresee’s requests and the Secretary’s responses, we conclude that Bresee has failed to establish good cause for reopening the proposed penalty assessments, and deny its motions with prejudice.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Michael D. Clements

Representative

408 A Manor Drive

Kingsport, TN 37660

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., 25^th 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