Secretary of Labor v. McCoy Elkhorn Coal Corporation (Commission decision, July 31, 2009)

Plain-English summary

McCoy Elkhorn said it never received four proposed penalty assessments. Federal Express records showed unsuccessful delivery attempts on December 26, 2008, when the mine offices may have been closed for the holidays. The Secretary agreed to serve the assessments again and give the operator 30 days after receipt to pay or contest them. The Commission therefore denied the reopening requests as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Four reopening requests were denied as moot, with the assessments to be re-served.
• Key point: An assessment does not require reopening when initial service failed and the Secretary agrees to re-serve it with a new 30-day response period.

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

July 31, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

McCOY ELKHORN COAL CORP.

Docket No. KENT 2009-1128

A.C. No. 15-15138-171766

Docket No. KENT 2009-1129

A.C. No. 15-18250-171772

Docket No. KENT 2009-1130

A.C. No. 15-18721-171781

Docket No. KENT 2009-1131

A.C. No. 15-18775-171784

BEFORE: Duffy, Chairman; Jordan, 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 May 26, 2009, the Commission received requests to reopen four penalty assessments issued to McCoy Elkhorn Coal Corporation (“McCoy”) that may have become final orders 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).

McCoy states that it never received Proposed Assessment Nos. 000171766, 000171772, 000171781 and 000171784. The Secretary states that Federal Express attempted delivery without success on December 26, 2008, for all four proposed assessments. She suggests that it is possible that the mine offices were closed for the holidays. The Secretary submits that in order to achieve proper service, she will re-serve the proposed assessments by Federal Express at the address of record, and that McCoy will then have 30 days after receipt to either pay or contest the proposed assessments.

Having reviewed McCoy’s requests and the Secretary’s response, we deny McCoy’s requests to reopen as moot. The Secretary may proceed as she has outlined in her response, and, if any of the proposed penalties are contested by McCoy, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 440, 441 (July 2006).

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

______

Robert F. Cohen, Jr., Commissioner

Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

2333 Alumni Park Plaza, Suite 310

Lexington, KY 40517

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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