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),                            Petitioner                         v. BELT TECH. INC.,                            Respondent

CIVIL PENALTY PROCEEDING Docket No. WEVA 2024-0036 A.C. No. 46-09575-581347 Mine: Lynn Branch No. 2 Mine

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. (2018) (“Mine Act”). On November 15, 2023, the Commission received from Belt Tech. Inc. (“Belt Tech”) 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).

Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on July 27, 2023, and was deemed a final order of the Commission on August 28, 2023. Belt Tech asserts that it did not receive the proposed assessment. It communicated with MSHA regarding the assessment via email on November 15, 2023. The operator claims a mistake was made with the service of the assessment.

The Secretary confirms that the U.S. Postal Service received the assessment on July 27, 2023, but erroneously forwarded it back to MSHA on the same day, only 13 minutes later—despite the assessment being mailed to the operator’s proper address of record. As such, the Secretary does not oppose the request to reopen. However, she urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Belt Tech’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator never received the proposed assessment. Section 105(a) states that “if within 30 days from the receipt of the notification issued by the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission . . . . ” 30 U.S.C. § 815(a) (emphasis added). See, e.g., Delhur Indus., Inc., 43 FMSHRC 396 (Aug. 2021). Here, it is uncontroverted that Belt Tech never received the original proposed penalty assessment and thus the 30-day requirement to file the contest never began. This obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to reopen is moot, the motion to reopen is deemed a timely filed contest of the penalties in the above-captioned case, 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

Commissioner Marvit, concurring:

I agree with the Majority’s reasoning and conclusion, but write to note how this case does not contradict my dissent in Explosive Contractors, 46 FMSHRC __, No. CENT 2024-0122 (Dec. 4, 2024). In Explosive Contractors, I argued that the Commission does not have authority to reopen final orders of the Commission under section 105(a) of the Mine Act. Section 105(a) states:

If, within 30 days from the receipt of the notification issued by the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty … the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency.

30 U.S.C. § 815(a) (emphasis added). As I explained in my dissent, invoking Federal Rule of Civil Procedure 60(b) cannot overcome the statutory language denying the Commission the authority to reopen final orders.

As the majority notes here, however, the Act clearly states that to become a final order of the Commission, the operator must have received the notification from the Secretary. See Hancock Materials, Inc., 31 FMSHRC 537 (May 2009). In the instant case, the operator never received the proposed order. As such, the Commission is not reopening this matter.

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

James Bowman

P.O. Box 99

150 Ballard Street

Midway, WV 25878

jimbowman61@hotmail.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