Good Construction

Plain-English summary

Good Construction asked to reopen a civil penalty case after it did not claim the certified mail containing the proposed assessment. The operator said its rural office was eight miles from the nearest post office and that a heavy snowstorm delayed its trip to collect the package. Judge Paul Merlin accepted that explanation and found that the operator satisfied the requirements for relief under Rule 60(b)(1). He reopened the case and ordered the Solicitor to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 823(d)(1); 29 C.F.R. § 2700.1(b)
• Outcome: The case was reopened, and the Solicitor was ordered to file a penalty petition within 45 days.
• Subsequent review: The Commission later reviewed this docket in west-99-263-m-commission.
• Key point: A documented delivery problem and unusual weather may support reopening a penalty case when the operator did not receive the assessment.

Full text (FMSHRC public release)

.
GOOD CONSTRUCTION
July 15, 1999
WEST 99-263-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             1730 K STREET, N.W., 6TH FLOOR

              WASHINGTON, D. C.  20006-3868


                      July 15, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-263-M
Petitioner : A. C. No. 45-03086-05511
:
v. :
GOOD CONSTRUCTION, : Good Portable Crusher
Respondent :

                     ORDER TO REOPEN
            ORDER TO SUBMIT PENALTY PETITION

 This case is before me pursuant to order  of  the Commission

dated June 21, 1999.

 The  instant  matter involves one alleged violation.   In  a

letter received on May 4, 1999, the operator seeks to reopen this
case on the ground that it did not receive notice of the proposed
penalty assessment.

 On October 21,  1997,  MSHA  issued  five  citations  to the

operator. MSHA proposed penalties for four of the violations,
which the operator timely contested and which are contained in
Docket Nos. WEST 98-139-M and WEST 98-178-M. These dockets were
assigned to Administrative Law Judge Richard Manning, who held a
hearing on January 6, 1999, and issued a decision on February 17,
1999.

 On  December  7,  1998,  MSHA  proposed  a  penalty  for the

violation in this case and mailed the proposal by certified mail
to the operator on that date. The proposed assessment was
returned to MSHA with the envelope marked "unclaimed". The
operator has provided a copy of the envelope which shows that the
operator was notified of the certified mail on December 16 and
21, 1998, and that on December 26, 1998, the notification was
returned marked unclaimed. The operator states that it was not
until February 24, 1999, that it realized a penalty had been
assessed when it received a demand letter from MSHA. The address
on the demand letter and returned envelope are the same.

 On  June  29, 1999, I issued an order directing the operator

to explain why it failed to accept the certified mail
notifications from the post office. In that order I held that
service in this case by certified mail with at least two
attempted deliveries was adequate.

 On  July  12,  1999, the operator filed its response to  the

June 29 order. The operator states that its office is located in
a rural area 8 miles from the nearest post office. The operator
states that it received the first notice but due to a heavy snow
storm was unable to reach the post office for several days. By
the time the operator was able to get to the post office the
assessment package had been returned.

 I  accept  the operator's representations and find that  the

operator has satisfied the requirements of Rule 60(b)(1). I
further note that as stated in the Commission's June 21 order,
the Secretary does not object to operator's motion for relief.
Therefore, this case should be reopened.

 In light of the foregoing, it  is  ORDERED that this case is

hereby REOPENED.

 It  is  further ORDERED that the Solicitor  file  a  penalty

petition within 45 days of the date of this order.

                          Paul Merlin
                          Chief Administrative Law Judge

Distribution: (Certified Mail)

Sheila Cronan, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203

Edward Falkowski, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

James A. Nelson, Esq., 205 Cowlitz, P. O. Box 878, Toledo, WA 98591

/gl