Secretary of Labor v. Callender Construction Company, Inc.

Plain-English summary

Callender Construction moved to reopen a final penalty assessment to contest three citations, but the record indicated that the associated penalties had already been paid. The Commission's acknowledgment letter used the wrong assessment-control number, and the Secretary's unopposed response repeated that number and addressed different citations. The Commission did not decide the reopening request. It ordered both parties to explain within 30 days why the correctly identified case should not be dismissed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The parties were ordered to show cause why the paid-penalty reopening matter should not be dismissed.
• Key point: A reopening request cannot be resolved reliably when the record uses the wrong assessment number and the identified penalties appear already paid.

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.

CALLENDER
CONSTRUCTION COMPANY, INC.

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Docket
No. LAKE 2020-0189-M

A.C.
No. 11-00214-494016

BEFORE:
Traynor, Chair; Althen and Rajkovich, 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 May 29, 2020, the Commission received from
Callender Construction Company, Inc. (“Callender”) a motion seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to
section 105(a) of the Mine Act,

30
U.S.C. § 815(a).

The
operator’s motion referenced the A.C. No. for the case as 11-00214-494016, and
requested to reopen the case to contest Citation Nos. 9387298, 9387397 [1]
and 9387296. It appears that the operator has paid the outstanding civil
penalties associated with the citations at issue.

We
note that the Commission’s acknowledgement letter incorrectly listed the A.C.
No. as 11-00214-498359. On June 3, 2020, the Commission received a response
from the Secretary of Labor stating that he does not oppose the motion to
reopen, but the Secretary’s response referenced the same A.C. number as the
Commission’s May 29 acknowledgment letter and addressed different citations
from the operator.

Since
it appears the penalties at issue in this motion to reopen have already been
paid,

the
parties are hereby ORDERED TO SHOW CAUSE within 30 days of the date of
this order why this case, AC. No. 11-00214-494016, should not be dismissed.

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I.
Althen

William I. Althen, Commissioner

/s/ Marco M.
Rajkovich, Jr.

Marco M. Rajkovich, Jr.,
Commissioner

Distribution (by
email):

Bruce Callender,
President

Callender
Construction Company, Inc.

928 West
Washington Street

Pittsfield, IL
62363

[email protected]

Emily Toler Scott,
Esq. 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]

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]

Melanie Garris,
Chief

Office of Civil
Penalty Compliance

U.S. Department of
Labor

Office of
Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington, DC
20004-1710

[email protected]

[1] The operator has
listed this citation number incorrectly in its motion to reopen. The correct
citation number is 9387297.