McCoy Elkhorn Coal Corporation (Commission decision, May 21, 2013)

Plain-English summary

MSHA's records showed that McCoy Elkhorn Coal's penalty assessment had become a final order, but the operator said it had filed a timely contest. McCoy supplied a copy of the contest form bearing MSHA's receipt stamp, and the Secretary confirmed that MSHA received it on time. The Commission found that the assessment never became final. It remanded the matter for further proceedings and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The assessment was found not final and was remanded for further proceedings.
• Key point: An MSHA-stamped contest form and the Secretary's confirmation established that the operator contested the assessment on time.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 21, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

v.

MCCOY ELKHORN COAL CORPORATION

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Docket No. KENT 2012-1591

A.C. No. 15-18775-179585-02

BEFORE: Jordan, Chairman; Young and Nakamura, 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 September 21, 2012, the Commission received from McCoy Elkhorn Coal Corporation (“McCoy”) a motion seeking to reopen a penalty assessment that according to MSHA’s records had 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).

McCoy asserts that it filed a timely notice of contest and encloses a copy of its completed contest form with MSHA’s receipt stamp. McCoy states that it discovered the delinquency after receiving notice from the Department of Treasury. The Secretary confirms that MSHA received the timely contest form.

Having reviewed McCoy’s request and the Secretary’s response, we find that the penalty assessment in this matter has not become a final order. We therefore remand it 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710