Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

ALPHA EXPLOSIVES

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Docket No. WEST 2011-1002-M
A.C. No. 04-05276-214576 DPB

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Alpha Explosives (“Alpha”) a motion seeking to reopen a penalty assessment that may have 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).

The operator received a delinquency letter from MSHA dated June 30, 2010. It asserts it never received the penalty assessment at issue since it was mailed to an incorrect address. Alpha further asserts it corrected the address on its Legal ID Report. The Secretary does not oppose the request to reopen and notes that the proposed assessment was returned undelivered. However, the Secretary submits that the address on the Contractor’s ID Report was changed on September 28, 2010, more than four months after the proposed assessment was mailed to the address of record. As the Secretary states, it is Alpha’s responsibility to keep MSHA informed of changes to its address of record on its Legal Identity Report.

Having reviewed Alpha’s request and the Secretary’s response, we conclude that the above-captioned assessment has not become a final order of the Commission because it was never received by Alpha. Accordingly, we deny the request to reopen as moot and remand this matter 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. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.