[DOCID: f:cn2002250.wais] TRICO RECYCLING, INC. CENT 2002-250-M June 26, 2002 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 June 26, 2002 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : Docket No. CENT 2002-250-M v. : A.C. No. 25-01008-05507 : TRICO RECYCLING, INC. : 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 May 28, 2002, the Commission received a request from TriCo Recycling, Inc. ("TriCo") 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 request, TriCo contends that it did not submit a request for a hearing because it did not receive the proposed penalty assessment issued on December 21, 2001, by the Department of Labor's Mine Safety and Health Administration ("MSHA"). Mot. at 2. Attached to TriCo's request is a copy of a letter dated May 9, 2002, from the Department of Labor's Office of the Solicitor to TriCo stating that the proposed penalty assessment sent to TriCo "appears to have been `returned to sender.'" Id., Attach. TriCo also attached to its request a copy of the proposed penalty assessment and a copy of a certified mail receipt indicating that the assessment was returned undelivered to MSHA. Id., Attach. 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," Rule 60(b) of the Federal Rules of Civil Procedure. 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 the proposed penalty assessment was not successfully delivered to TriCo. In the circumstances presented here, we treat TriCo's failure to file a hearing request as resulting from inadvertence or mistake. Accordingly, in the interest of justice, we grant TriCo's request for relief to reopen this penalty assessment that became a final order. 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 Fred Beekman, President Tri-County Recycling, Inc. 2400 Elk Street Beatrice, NE 68310 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., 22nd Floor Arlington, VA 22209 Myra James, Chief, Compliance Group Civil Penalty Compliance Office MSHA, US DOL 1100 Wilson Blvd., 25th Floor Arlington, VA 22209 Chief Administrative Law Judge David Barbour Federal Mine Safety & Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006