Mass Transport, Inc.

Plain-English summary

MSHA issued Mass Transport a proposed assessment for one citation and three orders arising at the Delbarton Preparation Plant. Mass Transport said it missed the contest deadline because MSHA mailed the assessment to an incorrect address, while the Secretary maintained that the assessment and delinquency notice went to the address then on record. The Commission found the record unclear about both the official address and whether Mass Transport kept that address current. It remanded the matter to the Chief ALJ to determine whether the company timely contested the penalty proposal and to resolve the address dispute. Further proceedings would depend on that finding.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b); 30 C.F.R. §§ 41.10, 41.12, 41.30; 30 U.S.C. § 815(a)
• Outcome: The matter was remanded for a determination of whether Mass Transport timely contested the proposed assessment.
• Key point: Whether an assessment became final depended on whether MSHA used the operator's official address and whether the operator kept that 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

November 6, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MASS TRANSPORT, INC.

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Docket No. WEVA 2008-425

A.C. No. 46-05649-118643 C479

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 2, 2008, the Commission received from Mass
Transport Inc. (“Mass Transport”) a motion by counsel requesting that the Commission reopen a
penalty assessment that had become 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).

On May 23, 2007, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Proposed Assessment No. 000118643 to Mass Transport, a contractor, for
various violations that allegedly occurred at the Delbarton Preparation Plant (“Delbarton”). On
January 18, 2008, the operator filed a motion to reopen the assessment, stating that it had failed
to timely contest the proposed assessment with respect to Citation No. 7244548 and Order Nos.
7244549, 7244550, and 7244552 because the proposed assessment had been sent to an incorrect
address.

Although the Secretary did not oppose the request to reopen, she noted that the proposed
penalty assessment and the delinquency notice were mailed to the address of record at the time of
assessment. The Secretary stated that Mass Transport should check the mailing address it
provided to MSHA to be sure that it is up-to-date.

On June 18, 2008, the Commission issued an order denying the operator’s motion. The
Commission explained that the operator’s counsel set forth conflicting and confused information
regarding the identity of the movant in both the caption and body of the motion, and that the
operator’s counsel failed to establish that the movant, as identified in the motion to reopen, had
standing to make the request.

On July 2, 2008, the Commission received from Mass Transport a second request to
reopen. Counsel, who states that she represents both Mass Transport and Delbarton,
acknowledges that she misidentified the movant as Delbarton instead of Mass Transport in the
style of the motion to reopen.

Counsel explains that she mistakenly believed that the citation,
orders and Proposed Assessment had been issued to Delbarton because the mine I.D on the
citation and orders and the Proposed Assessment identifies Delbarton as the mine.

In its second request, Mass Transport reiterates that it failed to timely contest the
proposed assessment because the proposed assessment had been mailed to an incorrect address.
In response to the Secretary’s prior submission that MSHA had mailed the proposed assessment
and delinquency notice to Mass Transport’s address of record at the time of the assessment, Mass
Transport states that the proposed assessment had been mailed to an address that was not the
mailing address or physical address of either Delbarton or Mass Transport. Mass Transport
asserts that, in fact, MSHA has Mass Transport’s correct address because MSHA previously has
mailed correspondence to Mass Transport at the correct address and lists the correct address in
MSHA’s data retrieval system on its website.

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

Having reviewed Mass Transport’s motion, we remand this matter to the Chief
Administrative Law Judge for a determination of whether Mass Transport 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 Mass Transport’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:

Ramonda C. Lyons, Esq.

Dinsmore & Shohl, LLP

P. O. Box 11887

900 Lee Street, Suite 600

Charleston, WV 25339

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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