Secretary of Labor v. Milestone Materials DIV/Mathy Construction (Commission decision, March 7, 2018)

Plain-English summary

Milestone Materials asked the Commission to reopen a penalty assessment that had become a final Commission order after it was not timely contested. The official order does not state why the operator missed the contest deadline or provide further facts supporting the request. The Secretary did not oppose reopening. The Commission granted the motion, reopened the matter, and remanded it to the Chief Administrative Law Judge. It directed the Secretary to file a penalty petition within 45 days and stated that granting this motion was not precedent for other reopening requests.

Decision snapshot

• Cited authority: Mine Act section 105(a) and 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded, with a penalty petition due within 45 days.
• Key point: The Commission granted this particular unopposed reopening request while expressly making the result nonprecedential for other motions.

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.

MILESTONE
MATERIALS DIV /

MATHY
CONSTRUCTION

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Docket
No. LAKE 2017-22-M

A.C.
No. 47-03084-415348   

BEFORE:  Althen,
Acting Chairman; Jordan, Young, and Cohen, 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”). The Commission has received a motion from the operator seeking to reopen a penalty assessment which had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does not oppose the motion.

Having reviewed movant’s unopposed
motion to reopen, we reopen this matter and remand it 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. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

The granting of this motion is not
precedential for the consideration of any other motion before the Commission.

/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:

Josh
Schultz, Esq.

Law
Office of Adele L. Abrams, P.C.

1625
17 th St.      

Denver,
CO 80202

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