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)

ENTACT

Docket No. WEST 2023-0117

A.C. No. 04-01891-568592

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 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.

/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:

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