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)
v.
BAILLIO SAND COMPANY, INC. |
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Docket No. VA 2015-300-M A.C. No. 44-06068-384434
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BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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 August 21, 2015, the Commission received from Baillio Sand Co., Inc., (“Baillio”) 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).
On June 17, 2015, the Secretary mailed the proposed assessment to Baillio by U.S. Postal Service Certified Mail. On August 17, 2015, the proposed assessment was deemed a final order of the Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.
Baillio asserts that it never received the proposed assessment. Tracking information submitted by Baillio shows that the proposed assessment reached the Virginia Beach, VA post office on June 20, 2015, but does not show that the proposed assessment was delivered. The Secretary states that the U.S. Postal Service was not able to locate a signed delivery receipt. The Secretary does not oppose the request to reopen, but notes that the proposed assessment was mailed to the address of record on Baillio’s Mine ID report. The Secretary asserts that he has sent other proposed assessments, which Baillio has contested, to this address.
Having reviewed Baillio’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because Baillio 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, Baillio’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, Chairman
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner
Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, 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 401
Arlington, VA 22202-5450