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

 

 

 

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