Secretary of Labor v. V-Tech Sand, LLC (Commission decision, May 24, 2018)

Plain-English summary

V-Tech Sand asked the Commission to reopen two penalty assessments. Acting Chairman William I. Althen and Commissioner Michael G. Young believed no final orders existed, so reopening was unnecessary and V-Tech should be permitted to contest the penalties before a judge. Commissioners Mary Lu Jordan and Robert F. Cohen believed the assessments had become final orders under section 105(a) and that V-Tech's motions were untimely. Because the Commission split two-to-two, there was no majority to grant reopening, and MSHA's determination that final orders had issued remained in place.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act, 30 U.S.C. § 815(a)
• Outcome: The motions to reopen were not granted because the Commission was evenly divided.
• Key point: A two-to-two Commission split leaves the challenged administrative disposition undisturbed without creating a controlling majority rationale.

Full text (FMSHRC public release)

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.

V-TECH
SAND, LLC

:

:

:

:

:

:

:

Docket
No. CENT 2016-293-M

A.C.
No. 03-02013-368839

Docket
No. CENT 2016-294-M

A.C.
No. 03-02013-371413

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.