FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
V-TECH SAND, LLC |
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Docket No. CENT 2016-293-M A.C. No. 03-02013-368839
Docket No. CENT 2016-294-M A.C. No. 03-02013-371413
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BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
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 12, 2016, the Commission received from V-Tech Sand, LLC (“V-Tech”) two motions seeking to reopen two penalty assessments. [1]
The Commissioners are evenly divided on
the disposition of this matter. Acting Chairman Althen and Commissioner Young
would hold that there is no final order and therefore the operator’s motions
are unnecessary. They would permit the operator to contest the penalties before
the Judge. Commissioners Jordan and Cohen would hold that the proposed
penalties did become final orders pursuant to section 105(a) of the Mine Act,
and that the motions to reopen were untimely filed. They would deny the motions.
Because the Commission is evenly divided, there is not a majority voting to grant the motions to reopen. The Secretary has administratively determined that final orders have been issued. The Commission’s order here leaves that determination undisturbed. See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992)
(providing that the effect of a split Commission decision is to leave standing disposition from which appeal has been sought).
/s/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
Distribution:
Wray Valentine
V-Tech Sand, LLC
48 Teresa St.
Batesville, AR 72503
Troy Pigg
V-Tech Sand, LLC
P.O. Box 2836
Batesville, AR 72503
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
[1] For the limited purpose of addressing these motions to reopen, we hereby consolidate docket numbers CENT 2016-293-M and CENT 2016-294-M involving similar procedural issues. 29 C.F.R. § 2700.12.