MRM Mining, Inc.

Plain-English summary

MRM Mining asked the Commission to reopen a final penalty assessment covering 15 citations. The assessment and later notices were returned undelivered after the company changed from a physical mailing address to a post office box. The Commission found that MRM had not adequately explained when it changed addresses, why it delayed notifying MSHA, when it received the assessment, or why it waited about four months after learning of the delinquency to seek reopening. It denied the request without prejudice. MRM could file an amended or renewed request within 30 days of the order.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. § 2700.1(b); 30 C.F.R. §§ 41.10 and 41.12
• Outcome: The reopening request was denied without prejudice, with 30 days allowed for a renewed request.
• Key point: An operator seeking relief from a final assessment must explain both the failure to contest and any later delay in requesting reopening.

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

June 9, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MRM MINING, INC.

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Docket No. KENT 2011-210

A.C. No. 15-18936-206241

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On November 12, 2010, the Commission received a request to reopen
a penalty assessment issued to MRM Mining, Inc. (“MRM”) that became 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).

We have held, however, 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).

On December 16, 2009, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000206241 to MRM for 15 citations. The record
indicates that the assessment was returned undelivered, as was the subsequent delinquency notice
sent by MSHA, and a letter notifying MRM that its contest filed on April 16, 2010, was untimely.

MRM states that it did not receive the assessment in a timely manner due to a change made to its
address. It submits that it no longer receives its mail at a “physical address,” but at a post office box
instead.

The Secretary opposes MRM’s request, asserting that it is the operator’s responsibility to
notify MSHA of any change of address within 30 days of the change. She acknowledges that
according to MSHA records, MRM requested that its address be updated to reflect its new P.O. Box
on April 8, 2010. The Secretary notes that in July 2010 the Department of Treasury notified the
operator that the assessment was delinquent, and in response, MRM filed a Dispute Form with
Treasury. She maintains that the operator’s untimely contest establishes that MRM was aware of
the proposed assessment as early as April 16, 2010, and that the notification from Treasury in July
brought the delinquency to its attention again. However, the operator waited until November 2010
to file its request to reopen.

It is an operator’s responsibility to file with MSHA the address of a mine and any changes of
address within 30 days. 30 C.F.R. §§ 41.10, 41.12. In the present case, it does not appear from the
record that MRM maintained its correct address with MSHA as required by the regulations.
Because MSHA was not notified until April 8, 2010, of MRM’s change of address, it appears that
the proposed assessment, issued on December 16, 2009, was served at the operator’s official address
of record. See The Pit, 16 FMSHRC 2033, 2034 (Oct. 1994); Harvey Trucking, 21 FMSHRC
567, 569 n.1 (June 1999).

Having reviewed the operator’s request to reopen and the Secretary’s response thereto, we
conclude that MRM has failed to provide a sufficient basis for the Commission to reopen the penalty
assessment. MRM’s request does not adequately explain the company’s failure to timely contest the
proposed assessment. Specifically, MRM has offered no explanation as to when it changed its
address and why it delayed in notifying MSHA of the change. It also fails to provide a detailed
explanation of when and how it first received the proposed assessment. In addition, the operator has
failed to explain why it delayed approximately four months in filing its request to reopen after
learning of the delinquency from Treasury. Accordingly, we hereby deny without prejudice MRM’s
request to reopen. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31
FMSHRC 47, 49 (Jan. 2009). The words “without prejudice” mean that MRM may submit another
request to reopen Assessment No. 000206241.

Any amended or renewed request by the operator to
reopen this assessment must be filed within 30 days of this order. Any such request filed after that
time will be denied with prejudice.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Minerva Ruth Mead, President

MRM Mining, Inc.

Box 308

Hihat, KY 41636

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. 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