<DOC>
[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