Secretary of Labor v. Cumberland Coal Resources, LP (Commission decision, October 19, 2016)

Plain-English summary

MSHA mailed Cumberland Coal a proposed assessment, but the Postal Service recorded no delivery date and MSHA had no confirmation that the operator received it. Cumberland said it never received the assessment and therefore had no opportunity to file a contest within 30 days. The Secretary did not oppose relief and acknowledged the missing delivery evidence. The Commission held that the assessment never became a final order, making a Rule 60(b) reopening unnecessary and the motion to reopen moot. It treated Cumberland's motion as a contest of seven listed citations and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. § 2700.28
• Outcome: The assessment was held not to be a final order, the reopening motion was deemed moot, and the filing was treated as a contest of seven citations.
• Key point: Without evidence that an operator received the proposed assessment, the operator cannot be treated as having missed the 30-day contest opportunity.

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.

CUMBERLAND
COAL RESOURCES, LP

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:

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Docket
No. PENN 2015-101

A.C.
No. 36-05018-358678

BEFORE:  Jordan,
Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”).  On January 8, 2015, the Commission received from Cumberland Coal Resources, LP (“Cumberland”) 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).

MSHA
records indicate that the proposed assessment was mailed via United States Postal Service (“USPS”) to the operator on August 13, 2014 to the operator’s address of record on the legal ID report.  Cumberland claims it never received a proposed penalty assessment from the Secretary.  USPS did not record a date of delivery but the Secretary estimated that the proposed assessment was delivered on August 16, 2014.  On September 15, 2014, 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.

The
Secretary does not oppose the request to reopen and admits that it has no record confirming delivery of the proposed assessment.  In this regard, the USPS online delivery report does not contain either a successful or non-successful delivery notation and the Secretary does not have any record of the proposed assessment being returned undelivered.

Having reviewed Cumberland’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 never had an opportunity to timely contest 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, there is no evidence that the operator ever received the proposed assessment at issue.  This obviates any need to invoke Rule 60(b).  Accordingly, the operator’s motion to reopen is moot.

We deem the operator’s motion a contest
of Citation Nos. 7028183, 7023620, 7023621, 7023622, 7027832, 7030058 and 7030059.   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/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Patrick
W. Dennison, Esq.

Jackson
Kelly, PLLC

Three
Gateway Center

Suite
1500

401
Liberty Avenue

Pittsburgh,
PA 15222

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

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

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 401

Arlington,
VA 22202-5450