Secretary of Labor v. Cessford Construction Company (Commission decision, October 29, 2009)

Plain-English summary

Cessford Construction asked the Commission to reopen a proposed penalty assessment. The Secretary's record review showed that Cessford had already filed a timely contest and that the penalties were being litigated in an active civil penalty case. The Secretary had filed a petition and Cessford had answered it. Because the assessment never became a final Commission order, the Commission dismissed the reopening request as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening request was dismissed as moot, and the existing penalty proceeding continued.
• Key point: Reopening is unnecessary when agency records confirm that the operator timely contested and an active penalty docket already exists.

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

October 29, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CESSFORD CONSTRUCTION COMPANY

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Docket No. CENT 2009-787-M
A.C. No. 13-02360-178617

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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 August 27, 2009, the Commission received from Cessford Construction Company (“Cessford”) a letter 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 Secretary submits that upon reviewing the records in this proceeding, she has discovered that the proposed penalty was timely contested and is the subject of an active civil penalty proceeding (Docket No. CENT 2009-339-M). In that proceeding, the Secretary has filed a penalty petition, and the operator has filed an answer.

Having reviewed Cessford’s request and the Secretary’s response, we find the request to reopen to be moot. Cessford has properly contested the proposed penalty assessment and therefore it did not become a final order of the Commission. This case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution

Donald W. Smith, Safety Director

Cessford Construction Company

3808 Old Highway 61

Burlington, IA 52601

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939