**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 February 6, 2023, the Commission receivedfrom Entact a motion seeking to reopen a penalty assessment that had appearedto become a final order of the Commission pursuant to section 105(a) of theMine Act, 30 U.S.C. § 815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of theCommission. 30 U.S.C. § 815(a).

 

            Recordsof 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 assertsthat it did not receive the proposed assessment. Specifically, it claims thatit could not find any copy of the assessment in any of its emails or hard copyfiles and that it checked with all their offices throughout the country, andnobody had received it. According to MSHA records, the assessment was sent toEntact’s health and safety director in Latrobe, Pennsylvania. However, thecurrent address of record and location of Entact’s safety director is inWestmont, Illinois. 

 

On January 31, 2023, the operatorcontacted MSHA to find out where the assessment was, and was informed that it hadbeen sent, although the delivery confirmation from USPS appears to show thatthe mail was returned because the occupant had “moved, left no address.” MSHAprovided 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 aletter via email informing it that the contest was sent too late. The Secretarydoes not oppose the request to reopen, but urges the operator to take steps toensure that future penalty contests are timely filed. 

 

Having reviewed Entact’s request and theSecretary’s response, we conclude that the proposed penalty assessment did notbecome a final order of the Commission because Entact did not receive theproposed assessment. *See*29 C.F.R. § 2700.26 (“[a] person has 30 days afterreceipt of the proposed penalty assessment within which to notify the Secretarythat he contests the proposed penalty assessment.”)

 

Accordingly, Entact’s motion to reopen ismoot, and this case is remanded to the Chief Administrative Law Judge forfurther proceedings pursuant to the Mine Act and the Commission's ProceduralRules, 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:

 

KimRedding

Consultant

N- Compliance Safety Services, Inc.

2949S. Jiovanni Ave.

Meridian,ID 83642

redding1562@msn.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 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov