Ember Contracting Corporation

Plain-English summary

Ember Contracting said it did not receive three proposed assessments totaling $157,861 and first learned of them when a later assessment listed the balances as outstanding. MSHA reported that the three packages were sent to the address of record but returned as undeliverable. The Secretary did not oppose reopening. Because operators must keep their official address current, the Commission held that the result depended on whether MSHA used Ember's proper address and whether Ember had maintained it. The case was remanded for the Chief ALJ to resolve the address and timeliness questions.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 41.10, 41.12, and 41.30; 30 U.S.C. § 815(a)
• Outcome: The three matters were remanded to determine the correct address of record and whether the penalty contests were timely.
• Key point: Returned assessments may not become final if MSHA used an incorrect address, but relief may be denied if the operator failed to update its official address.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 24, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

EMBER CONTRACTING CORPORATION

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Docket No. KENT 2008-1346

A.C. No. 15-18594-150594

Docket No. KENT 2008-1347

A.C. No. 15-18594-147288

Docket No. KENT 2008-1348

A.C. No. 15-18594-139998

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 25, 2008, the Commission received from Ember
Contracting Corporation (“Ember”) a letter from its president in which he requests to reopen
three 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).

In February, April, and May 2008, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued three proposed assessments with penalties totaling $157,861.
According to Ember’s president, Ember did not receive the proposed assessments and first
learned of these penalties on July 16, 2008, when they appeared as “outstanding” on a proposed
assessment that Ember received.

In response, the Secretary states that the proposed assessments at issue were sent to the
address of record but were returned because they could not be delivered at that address. The
Secretary further states that she does not oppose Ember’s request to reopen in this proceeding.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms 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 Ember’s
official address of record at the time of assessment and whether Ember maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Ember’s official address of
record, grounds may exist for denying Ember’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 Ember’s
request may be moot.

Having reviewed Ember’s request and the Secretary’s response, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Ember 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 Ember’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. 

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner 

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Robert F. Cohen, Jr., Commissioner

Distribution:

Randy Gilkerson, President

Ember Contracting Corp.

P.O. Box 1500

Pikeville, KY 41502

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th 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