Secretary of Labor v. ASGCO Manufacturing, Inc.

Plain-English summary

ASGCO asked the Commission to reopen a final assessment involving one citation. The Secretary did not oppose reopening but reported that MSHA had received full payment of the penalty after the motion was filed. Because payment appeared to eliminate the dispute, the Commission did not decide the reopening request. Instead, it ordered ASGCO to explain within 30 days whether it still wished to contest the penalty and why the penalty had been paid.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: ASGCO was ordered to show cause why the reopening case should not be dismissed.
• Key point: An operator that pays the penalty it seeks to reopen must explain whether a live dispute remains.

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.

ASGCO
MANUFACTURING INC.

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Docket
No. PENN 2024-0007

A.C.
No. 36-10240-583649

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BEFORE: Jordan,
Chair; Baker, and Marvit, 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. (2018) (“Mine Act”). On October 31, 2023, the Commission received
from ASGCO Manufacturing Inc. (“ASGCO”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section
105(a) of the Mine Act,

30
U.S.C. § 815(a).

The Secretary of Labor does not oppose the
motion to reopen, but notes that MSHA received full payment of the single
citation at issue on November 10, 2023. The Secretary asserts that, because the
operator has now paid the penalty it wished to reopen, there is no longer any
issue for the Commission to decide.

Since
it appears the penalty at issue in this motion to reopen has already been paid,
ASGCO is hereby ORDERED TO SHOW CAUSE within 30 days of the date of this
order why this case should not be dismissed. Any response should explain
whether ASGCO still wishes to contest the penalty, and if so, why the penalty
has since been paid.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Andrew
Veeramootoo

Safety
Manager

ASGCO
Manufacturing, Inc.

730
Bangor Rd.

Nazareth,
PA 18064

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]