**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

** **

 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

            

**ORDER**

 

BY THE COMMISSION:

                                                                                                                 

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On October 13, 2023, the Commission receivedfrom ChadBuus (“Buus”)a motion seeking to reopen a penalty assessment that had appeared to become afinal order of the Commission pursuant to section 105(a) of the Mine Act, 30U.S.C. § 815(a).

 

            OnAugust 7, 2023, Buus received a proposed penalty assessment from the Secretary.On September 7, 2023, the proposed assessment was deemed a final order of theCommission, when it appeared that the operator had not filed a Notice ofContest within 30 days.

 

            Theoperator asserts that it timely filed its contest of the assessment on August16, 2023, via the Mine Safety and Health Administration’s (MSHA) contest emailaddress. MSHA’s records confirm that the contest was timely received but hadnot been assigned or processed by the agency. When this error was brought toMSHA’s Civil Penalty and Compliance Office’s attention, the contest wasassigned and processed. Based upon these circumstances, the Secretary submitsthat the Motion to Reopen should be denied as moot. Alternatively, theSecretary does not oppose the Motion to Reopen.

 

            Having reviewed Buus’ request and the Secretary’sresponse, we conclude that the proposed penalty assessment did not become a finalorder of the Commission because the operator timely contested the proposedassessment. Section 105(a) states that if an operator “fails to notify theSecretary that he intends to contest the . . . proposed assessment of penalty .. . the citation and the proposed assessment of penalty shall be deemed a finalorder of the Commission.” 30 U.S.C. § 815(a). Here, Buus notified the Secretaryof the contest. This obviates any need to invoke Rule 60(b). Accordingly, theoperator’s motion to reopen is moot, and this case is remanded to the ChiefAdministrative Law Judge for further proceedings pursuant to the Mine Act andthe Commission’s Procedural Rules, 29 C.F.R. Part 2700.

 

 

 

/s/Mary Lu Jordan

Mary Lu Jordan,Chair

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

Distribution:

 

R.Henry Moore, Esq.

Fisher& Phillips LLP

SixPPG Place

Suite830

Pittsburgh,PA 15222

hmoore@fisherphillips.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris

USDOL/MSHA,OAASEI/CPCO

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety Health Review Commission

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov