Alpha Explosives (Commission decision, September 26, 2011)

Plain-English summary

Alpha Explosives asked the Commission to reopen a proposed penalty assessment after receiving a delinquency letter. The operator said the assessment had been mailed to the wrong address, and the Secretary confirmed that it was returned undelivered. Because Alpha never received the assessment, the Commission held that it had not become a final order under section 105(a) of the Mine Act. The Commission denied reopening as moot, remanded the case, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The reopening request was denied as moot and the assessment proceeding was remanded.
• Key point: A proposed assessment that the operator never received does not become a final Commission order through failure to contest it.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ALPHA EXPLOSIVES

:

:

:

:

:

:

:

Docket No. WEST 2011-1002-M

A.C. No. 04-05276-214576 DPB

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Alpha Explosives (“Alpha”) a motion seeking to reopen a penalty assessment that may have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

The operator received a delinquency letter from MSHA dated June 30, 2010. It asserts it never received the penalty assessment at issue since it was mailed to an incorrect address. Alpha further asserts it corrected the address on its Legal ID Report. The Secretary does not oppose the request to reopen and notes that the proposed assessment was returned undelivered. However, the Secretary submits that the address on the Contractor’s ID Report was changed on September 28, 2010, more than four months after the proposed assessment was mailed to the address of record. As the Secretary states, it is Alpha’s responsibility to keep MSHA informed of changes to its address of record on its Legal Identity Report.

Having reviewed Alpha’s request and the Secretary’s response, we conclude that the above-captioned assessment has not become a final order of the Commission because it was never received by Alpha. Accordingly, we deny the request to reopen as moot and remand this matter 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.

/s/______

Mary Lu Jordan, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Brad Langer, CEO

Alpha Explosives

P.O. Box 310

Lincoln, CA 95648

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021