FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 6, 2008

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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. (2000) (“Mine Act”). On July 2, 2008, the Commission received from Mass Transport Inc. (“Mass Transport”) a motion by counsel requesting that the Commission 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 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).

            On May 23, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000118643 to Mass Transport, a contractor, for various violations that allegedly occurred at the Delbarton Preparation Plant (“Delbarton”). On January 18, 2008, the operator filed a motion to reopen the assessment, stating that it had failed to timely contest the proposed assessment with respect to Citation No. 7244548 and Order Nos. 7244549, 7244550, and 7244552 because the proposed assessment had been sent to an incorrect address.

            Although the Secretary did not oppose the request to reopen, she noted that the proposed penalty assessment and the delinquency notice were mailed to the address of record at the time of assessment. The Secretary stated that Mass Transport should check the mailing address it provided to MSHA to be sure that it is up-to-date.

            On June 18, 2008, the Commission issued an order denying the operator’s motion. The Commission explained that the operator’s counsel set forth conflicting and confused information regarding the identity of the movant in both the caption and body of the motion, and that the operator’s counsel failed to establish that the movant, as identified in the motion to reopen, had standing to make the request.

            On July 2, 2008, the Commission received from Mass Transport a second request to reopen. Counsel, who states that she represents both Mass Transport and Delbarton, acknowledges that she misidentified the movant as Delbarton instead of Mass Transport in the style of the motion to reopen. Counsel explains that she mistakenly believed that the citation, orders and Proposed Assessment had been issued to Delbarton because the mine I.D on the citation and orders and the Proposed Assessment identifies Delbarton as the mine.

            In its second request, Mass Transport reiterates that it failed to timely contest the proposed assessment because the proposed assessment had been mailed to an incorrect address. In response to the Secretary’s prior submission that MSHA had mailed the proposed assessment and delinquency notice to Mass Transport’s address of record at the time of the assessment, Mass Transport states that the proposed assessment had been mailed to an address that was not the mailing address or physical address of either Delbarton or Mass Transport. Mass Transport asserts that, in fact, MSHA has Mass Transport’s correct address because MSHA previously has mailed correspondence to Mass Transport at the correct address and lists the correct address in MSHA’s data retrieval system on its website.

            We have held 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).

            It is an operator’s responsibility to file with MSHA the address of a mine and any changes of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to another appropriate address provided by the operator. 30 C.F.R. § 41.30.

            It is unclear from the record whether MSHA mailed the proposed assessment to Mass Transport’s official address of record at the time of assessment and whether Mass Transport maintained its correct address with MSHA. If MSHA sent the proposed assessment to Mass Transport’s official address of record, grounds may exist for denying Mass Transport’s request for relief. Cf. Harvey Trucking, 21 FMSHRC 567, 568-69 & n.1 (June 1999) (stating that operator is required to notify MSHA of changes of address). If, however, MSHA mailed the proposed assessment to an incorrect address, the proposed assessment may not have become a final Commission order and Mass Transport’s request may be moot.

            Having reviewed Mass Transport’s motion, we remand this matter to the Chief Administrative Law Judge for a determination of whether Mass Transport timely contested the penalty proposal. We ask the Chief Judge, in considering the matter, to resolve the dispute over whether MSHA sent the proposed assessment to Mass Transport’s official address of record at the time of assessment. The Judge shall order further appropriate proceedings based upon that determination in accordance with principles described herein, the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

Ramonda C. Lyons, Esq.

Dinsmore & Shohl, LLP

P. O. Box 11887

 900 Lee Street, Suite 600

Charleston, WV 25339

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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