1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On February 6, 2023, the Commission received from Entact

a motion seeking to reopen a penalty assessment that had appeared to 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).

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was returned undelivered on December 24, 

2022, and became a final order of the Commission on January 23, 2023. Entact asserts that it did 

not receive the proposed assessment. Specifically, it claims that it could not find any copy of the 

assessment in any of its emails or hard copy files and that it checked with all their offices

throughout the country, and nobody had received it. According to MSHA records, the 

assessment was sent to Entact’s health and safety director in Latrobe, Pennsylvania. However, 

the current address of record and location of Entact’s safety director is in Westmont, Illinois. 

On January 31, 2023, the operator contacted MSHA to find out where the assessment 

was, and was informed that it had been sent, although the delivery confirmation from USPS 

appears to show that the mail was returned because the occupant had “moved, left no address.” 

MSHA provided the operator with a copy of the proposed assessment on February 1, 2023, and 

the operator filed the contest with MSHA the same day. It received a letter via email informing 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

v.

ENTACT

:

:

:

:

:

:

:

Docket No. WEST 2023-0117

A.C. No. 04-01891-568592

December 4, 2023 
2

it that the contest was sent too late. The Secretary does not oppose the request to reopen, but 

urges the operator to take steps to ensure that future penalty contests are timely filed. 

Having reviewed Entact’s request and the Secretary’s response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because Entact did 

not receive the proposed assessment. See 29 C.F.R. § 2700.26 (“[a] person has 30 days after 

receipt of the proposed penalty assessment within which to notify the Secretary that he contests 

the proposed penalty assessment.”)

Accordingly, Entact’s motion to reopen is moot, and this case is remanded to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700.

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
3

Distribution:

Kim Redding

Consultant

N - Compliance Safety Services, Inc.

2949 S. Jiovanni Ave.

Meridian, ID 83642

redding1562@msn.com

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov