FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

KEVIN COLEMAN, formerly employed

by CARMEUSE LIME

Docket No. SE 2024-0135

A.C. No. 09-01228-593452A

BEFORE: Jordan, Chair; Baker and Marvit, 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. (2012) (“Mine Act”). On April 4, 2024, the Commission received a motion from Kevin Coleman seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the Commission.

On June 29, 2022, the Mine Safety and Health Administration (“MSHA”) issued Citation No. 9701264 to Carmeuse Lime for an alleged safety violation at its Talona Mountain Mine. Subsequently, MSHA instigated a special investigation against Coleman, the mine supervisor, in connection with the aforementioned citation. On January 17, 2024, MSHA requested a mailing address for Coleman and was informed that anything related to the case should be sent to his counsel. However, on January 31, 2024, MSHA issued a proposed penalty assessment to Coleman and attempted to serve the assessment to the mine site.

MSHA records indicate that the Talona Mountain Mine was listed as abandoned as of December 12, 2023. The mine was closed, and Coleman was no longer employed at that location. Unsurprisingly, when service of the proposed assessment was attempted, USPS could not deliver the assessment and it was promptly returned to sender. MSHA made no further attempt to remedy the faulty service attempt.

Having reviewed Coleman’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because it was never served on Coleman. The Commission has held that when an assessment is sent to the wrong address, it does not become a final order, so a request to reopen it is moot. See Petra Materials, 32 FMSHRC 1113, 1116 (Sept. 2010); American Sand Co. LLC, 42 FMSHRC 767 (Oct. 2020) (applying this principle to an order of default when the Chief Judge’s order to show cause was sent to the wrong address). This obviates any need to invoke Rule 60(b). Accordingly, the Coleman’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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Arthur M. Wolfson, Esq.

Fisher & Phillips LLP

Six PPG Place, Suite 830

Pittsburgh, PA 15222

awolfson@fisherphillips.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

Administrative Law Judge Alen Paez

Office of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
APaez@fmshrc.gov

Chief Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law Judge
Federal Mine Safety Health Review Commission
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov