Ruscat Enterprises, Inc.

Plain-English summary

Ruscat Enterprises sought to reopen two proposed penalty assessments, saying it never received the originals and learned of them only through delinquency notices. MSHA did not oppose reopening but reported that Federal Express returned the assessment packages because of an incorrect address. Mine operators must keep their official address current with MSHA. The Commission held that the result depended on whether MSHA used Ruscat's official address of record and whether Ruscat had maintained that address correctly. It remanded for the Chief ALJ to resolve the address and timeliness questions and order the appropriate further proceedings.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 41.10, 41.12, and 41.30; 30 U.S.C. § 815(a)
• Outcome: The matters were remanded to determine the correct address of record and whether the penalty contests were timely.
• Key point: A returned assessment may support reopening if MSHA used the wrong address, but not if the operator failed to keep its official address current.

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

December 22, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

RUSCAT ENTERPRISES, INC.

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Docket No. WEVA 2008-1083
A.C. No. 46-07366-135717

Docket No. WEVA 2008-1084
A.C. No. 46-07366-138992

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 May 12, 2008, the Commission received from Ruscat
Enterprises, Inc. (“Ruscat”) a letter seeking to reopen penalty assessments that may have 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).

On January 9, and February 6, 2008, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued Proposed Assessment Nos. 000135717 and 000138992,
respectively, to Ruscat, proposing civil penalties for several citations. Ruscat states that it never
received the original proposed assessment forms. It alleges that it received copies of the
proposed assessments only after it received delinquency notices from MSHA seeking payment of
the penalties. While the Secretary states that she does not oppose Ruscat’s request to reopen, she
notes that the proposed assessments were sent by Federal Express to Ruscat’s address of record,
but were returned undelivered because of an incorrect address.

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 inadvertence or mistake. 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 Ruscat’s
official address of record at the time of assessment and whether Ruscat maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Ruscat’s official address of
record, grounds may exist for denying Ruscat’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 Ruscat’s
request may be moot.

Having reviewed Ruscat’s request and the Secretary’s response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
Ruscat timely contested the penalty proposals. We ask the Chief Judge, in considering the
matter, to resolve the dispute over whether MSHA sent the proposed assessment to Ruscat’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. See Mass Transport,
Inc., 30 FMSHRC , slip op. at 3-4, No. WEVA 2008-425 (Nov. 6, 2008).                       

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Donnie Coleman

Safety Consultant

Ruscat Enterprises, Inc.

P.O. Box 1537

Welch, WV 24801

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