Secretary of Labor v. Specialty Vermiculite, LLC

Plain-English summary

Specialty Vermiculite contested four citations on August 4, 2023. MSHA initially treated the filing as late because postal information listed the assessment as delivered on July 1. After reviewing the delivery record, MSHA corrected the receipt date to July 5, making the contest timely. The Commission held that the assessment never became final because the operator had notified the Secretary within 30 days. It denied reopening as moot and remanded the case for further proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The assessment was held nonfinal, the reopening motion was denied as moot, and the case was remanded.
• Key point: A corrected delivery date can establish that a penalty contest was timely and prevent finality.

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.

SPECIALTY
VERMICULITE,

LLC

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Docket
No. SE 2023-0232

A.C.
No. 38-00085-579929

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BEFORE:
Jordan, Chair; Althen, Rajkovich, 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 August 8, 2023, the Commission received
from Specialty Vermiculite, LLC (“Specialty Vermiculite”) 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).

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On
July 5, 2023, Specialty Vermiculite received a proposed penalty assessment from
the Secretary. On August 4, 2023, 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.

Specialty
Vermiculite asserts that it timely contested the proposed assessment. According
to the operator, the contest of four citations was filed on August 4, 2023, but
the Mine Safety and Health Administration’s (MSHA) Assessments Office deemed it
untimely due to the U.S. Post Office’s delivery receipt date of the proposed assessment
as July 1, 2023. Specialty Vermiculite argues the contest was timely and there
was miscommunication regarding the delivery. After careful review, MSHA
corrected the date of delivery of the proposed assessment to July 5, 2023. The
Secretary does not oppose the request to reopen, but argues that because the
contest was timely, the Commission should deny this motion to reopen as moot and
remand for further proceedings.

Having
reviewed Specialty
Vermiculite’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 timely contested
the proposed assessment. Section 105(a) states that if an operator “fails to
notify the Secretary that he intends to contest 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). Here, Specialty
Vermiculite notified the Secretary of the contest. This obviates any need to
invoke Rule 60(b). Accordingly, the operator’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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

R.
Henry Moore, Esq.

Fisher
& Phillips LLP

Six
PPG Place, Suite 830

Pittsburgh,
PA 15222

[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]