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.
DURACAP MATERIALS LLC |
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Docket No. SE 2018-95-M A.C. No. 40-03343-442373 |
BEFORE: Althen, Acting Chairman; Jordan, and Young, Commissioners1
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 February 20, 2018, the Commission received from Duracap Materials LLC (“Duracap”) 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 July 5, 2017, Duracap received a proposed penalty assessment from the Secretary. On August 4, 2017, 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. MSHA mailed a delinquency notification to the operator on October 14, 2017, and the case was referred to the U.S. Department of Treasury for collection on December 14, 2017.
The operator claims that it timely mailed a contest to MSHA. As evidence of the timely contest, the operator provides a certified mail receipt. Records from the US Postal Service indicate that the contest was received at the post office in Arlington, Virginia, but was never delivered to the Secretary. The Secretary does not oppose the request to reopen. Significantly, the Secretary does not dispute that the contest was received by MSHA on July 13, 2017, before it purportedly became a final order of the Commission.
Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest 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). Here, the evidence indicates that Duracap timely notified the Secretary of the contest.
Therefore, having reviewed Duracap’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 timely contested the proposed assessment. This obviates any need to invoke Rule 60(b).
Accordingly, the operator’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/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
Distribution:
Matt Nelson
Duracap Materials LLC
P.O. Box 53426
Knoxville, TN 37950
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