Secretary of Labor v. DelHur Industries, Inc.

Plain-English summary

DelHur Industries did not receive a proposed penalty assessment that the Postal Service returned to the Secretary as unclaimed. The company learned of the penalties from a delinquency letter and filed a reopening motion within 30 days. The Commission held that the assessment never became final because the statutory contest period begins upon receipt. It treated the motion as a timely contest, declared reopening unnecessary, and remanded the case. The Commission also directed that an unrelated overpayment applied to the contested penalties be refunded or applied to other final penalties.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was treated as a timely contest and the case was remanded; improperly applied overpayments were to be refunded or reallocated.
• Key point: The 30-day contest period did not begin until the operator actually received notice of the assessment.

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.

DELHUR
INDUSTRIES, INC.

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Docket
No. WEST 2021-0107

A.C.
No. 45-01923-521040

BEFORE: 
Traynor,
Chair; Althen and Rajkovich, 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”). On January 27, 2021, the Commission received
from DelHur Industries, Inc. (“DelHur”) 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
September 2, 2020, the Secretary sent a proposed penalty assessment to DelHur. On
November 5, 2020, 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.

DelHur
asserts that it never received the Secretary’s proposed assessment. DelHur
maintains that it only learned of the assessment upon receiving a delinquency
letter from the Secretary on January 8, 2021 and then promptly filed a motion
to reopen. The Secretary does not oppose the request to reopen, and notes that
Postal Service informed the Secretary on November 10, 2020, that the document
was “Unclaimed/Being Returned to Sender.” Both parties also agree that an
overpayment from an unrelated civil penalty was applied to the citations at
issue here. DelHur requests to be refunded for these overpayments while it
contests the civil penalties before the Commission.

Having reviewed DelHur’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 never
received the proposed assessment. Section 105(a) states that if an operator “If,
within 30 days from the receipt of the notification issued by the Secretary ,
the operator fails to notify the Secretary that he intends to contest the
citation or 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) (emphasis added). Here, it is uncontroverted that DelHur
never received the original proposed penalty assessment and thus the 30-day
requirement to file the contest only began once the DelHur received the
Secretary’s delinquency letter. In filing the motion to reopen, DelHur
contested the penalties within 30 days in accordance with section 105(a). This
obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to
reopen is moot, the motion to reopen is deemed a timely filed contest of the
penalties in the above-captioned case, 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. Any overpayment applied
to the contested penalties should be refunded to the operator or applied to any
outstanding penalties that are final orders of the Commission.

/s/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Eddee
Smay

Safety
Manager

DelHur
Industries, Inc.

1933
Jadwin Avenue, Suite 110,

Richland,
WA 99354

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]