.
CITY TRANSFER OF KENT, INCORPORATED
June 21, 2000
WEST 2000-311-M


            FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       1730 K STREET NW, 6TH FLOOR

                         WASHINGTON, D.C.  20006


                              June 21, 2000

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
             v.                     : Docket Nos. WEST 2000-311-M
                                    :     through WEST 2000-314-M
CITY TRANSFER OF KENT,              :
  INCORPORATED                      :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
         Commissioners


                                  ORDER

BY: Jordan, Chairman; Riley and Beatty, Commissioners

     This matter arises under the Federal Mine Safety and Health Act 
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On April 21,
2000, the Commission received from City Transfer of Kent, Inc. ("City
Transfer") a request to reopen 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).  The Secretary of Labor does not oppose 
the motion for relief filed by City Transfer.

     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, City Transfer, which is represented by
Environmental Compliance & Remediation, Inc., states that when it 
received the citations, "there was no formal statement from MSHA on 
the appeals process," contrary to the past practice by the Department 
of Labor's Mine Safety and Health Administration ("MSHA") of including
"a post card with citations that could be sent back to MSHA requesting 
an informal meeting."  Letter dated April 12, 2000. It also contends
that it previously mailed letters dated August 4 and 18, 1999 to MSHA 
contesting the citations in these cases because they were unjust and
unsubstantiated, and requesting a hearing. Id. and attachs. It alleges
that it never received a response to its letters. Letter dated April 
12, 2000.  City Transfer attached to its request copies of several 
letters, dated May 24, August 4, and August 18, 1999, which it 
allegedly sent to MSHA's regional office in Bellevue, Washington 
contesting the citations; a return receipt for a mailing to MSHA's 
regional office delivered on November 7, 1999; and a letter dated 
October 29, 1999, which it allegedly sent to MSHA's Civil Penalty 
Compliance Office indicating that it sent the August 4 and 18
letters and inquiring into the status of its hearing request. Attachs.
Accordingly, City Transfer requests a hearing on Citation Nos. 
"796948 -- 796979."  Letter dated April 12, 2000.

     We have held that, in appropriate circumstances and pursuant to 
Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final by operation of section 105(a). See,
eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201 (Mar.
1998); Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993).
We also have 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 Preservation Servs., 
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).  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 National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); 
Peabody Coal Co., 19 FMSHRC 1613, 1614- 15 (Oct. 1997); Stillwater 
Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining 
Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996).

     On the basis of the present record, we are unable to evaluate 
the merits of City Transfer's position.[1]  In the interest of
justice, we remand the matter for assignment to a judge to determine 
whether City Transfer has met the criteria for relief under Rule 60(b).  
See Bauman Landscape, Inc., 22 FMSHRC 289, 289-90 (Mar. 2000) (remanding 
to a judge where the operator claimed that it never received the 
proposed penalty assessment and owner did not sign the return receipt 
without submitting any supporting documentation); Warrior Investment Co., 
21 FMSHRC 971, 973 (Sept. 1999) (remanding where operator claimed that 
it did not receive proposed penalty assessment and record did not clearly
indicate why service was unsuccessful). If the judge determines that
such relief is appropriate, this case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.


                                    Mary Lu Jordan, Chairman

                                    James C. Riley, Commissioner

                                    Robert H. Beatty, Jr., Commissioner


Distribution

Michael Breysse, NW Regional Supervisor
City Transfer of Kent, Inc.
140 Rainier Ave., South, #7
Renton, WA 98057

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006


**FOOTNOTES**

     [1] In view of the fact that the Secretary does not oppose City 
Transfer's motion to reopen this matter for a hearing on the merits, 
Commissioners Marks and Verheggen conclude that the motion should be 
granted.