Secretary of Labor v. Entact (Commission decision, December 4, 2023)

Plain-English summary

MSHA mailed Entact's proposed assessment to a former Pennsylvania address, and Postal Service records showed it was returned because the occupant had moved. Entact's current safety director and address of record were in Illinois, and the company found no copy of the assessment in its offices or files. Entact contacted MSHA, received a copy on February 1, and filed its contest the same day. The Commission held that the 30-day period never began because Entact had not received the assessment. It treated reopening as moot and remanded the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was moot because the assessment never became final, and the case was remanded.
• Key point: A returned assessment sent to an old address does not start the 30-day contest period.

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.

ENTACT

:

:

:

:

:

:

:

Docket
No. WEST 2023-0117

A.C.
No. 04-01891-568592

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, 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 February 6, 2023, the Commission received from Entact 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).

        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).

        Records

of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was returned undelivered on December 24, 2022, and became a final order of the Commission on January 23, 2023. Entact asserts that it did not receive the proposed assessment. Specifically, it claims that it could not find any copy of the assessment in any of its emails or hard copy files and that it checked with all their offices throughout the country, and nobody had received it. According to MSHA records, the assessment was sent to Entact’s health and safety director in Latrobe, Pennsylvania. However, the current address of record and location of Entact’s safety director is in Westmont, Illinois.

On January 31, 2023, the operator
contacted MSHA to find out where the assessment was, and was informed that it had been sent, although the delivery confirmation from USPS appears to show that the mail was returned because the occupant had “moved, left no address.” MSHA provided the operator with a copy of the proposed assessment on February 1, 2023, and the operator filed the contest with MSHA the same day. It received a letter via email informing it that the contest was sent too late. The Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Entact’s request and the
Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because Entact did not receive the proposed assessment. See 29 C.F.R. § 2700.26 (“[a] person has 30 days after receipt of the proposed penalty assessment within which to notify the Secretary that he contests the proposed penalty assessment.”)

Accordingly, Entact’s motion to reopen is
moot, 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.

/s/ Mary Lu Jordan

Mary Lu Jordan,
Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Kim
Redding

Consultant

N

• Compliance Safety Services, Inc.

2949
S. Jiovanni Ave.

Meridian,
ID 83642

[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

Federal Mine Safety Health Review Commission

Office
of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]