Coal Junction Coal Company

Plain-English summary

The Chief Administrative Law Judge dismissed Coal Junction Coal Company's civil penalty contest after the Secretary reported that the proposed penalties had been paid. The company later filed an answer stating that it wanted to pursue the contest. The Commission treated that answer as a petition for discretionary review, vacated the dismissal, and remanded the case for further proceedings so the operator could address the Secretary's assertion that the penalties had been paid. The Commission did not decide the underlying violations or penalty issues.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 823(c) and 823(d)(2)
• Outcome: The dismissal order was vacated and the civil penalty proceeding was remanded.
• Key point: A late answer may be treated as a petition for review when the record suggests that the operator should be heard about whether payment actually extinguished its right to contest.

Full text (FMSHRC public release)

CCASE:
MSHA V. COAL JUNCTION COAL
DDATE:
19890407
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                             April 7, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.                 Docket No. PENN 88-260

COAL JUNCTION COAL COMPANY

BEFORE: Ford, Chairman; Doyle and Lastowka, Commissioners

       DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
("Mine Act"), Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Dismissal on February 27, 1989, stating that the
Commission has been informed by the Secretary of Labor that the
proposed civil penalties had been paid by Coal Junction Coal Company
("Coal Junction"). However, in a letter to Judge Merlin dated
March 3, 1989, and received by the Commission on March 6, 1989,
Coal Junction submitted an Answer to the Secretary's Petition for
Assessment of Civil Penalty, which had been filed in August 1988.
The Answer indicates that Coal Junction wishes to pursue its contest
in this matter. Under the circumstances presented, we deem Coal
Junction's Answer to constitute, in effect, a petition for
discretionary review, which we grant. The judge's dismissal order
is vacated and this matter is remanded for further proceedings.

On April 25 and 26, 1988, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to
Coal Junction, at its surface coal mine in Pennsylvania, a number

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of citations for alleged violations of mandatory standards. Coal
Junction did not immediately contest the citations. In June 1988,
MSHA notified Coal Junction that it proposed civil penalties of $407
for the alleged violations. In response to this notification, Coal
Junction filed with the Commission a "Blue Card" request for a
hearing. On August 22, 1988,

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~503
the Secretary filed with the Commission a Petition for Assessment
of Civil Penalty, and certified that a copy of the petition had
been mailed to Coal Junction.

Coal Junction did not file an answer to the Secretary's

petition within 30 days, as it was required to do in order to
maintain its contest. See 29 C.F.R. $ 2700.28. Accordingly, on
December 5, 1988, Judge Merlin issued to Coal Junction an Order to
Show Cause explaining the requirements for filing an answer to a
civil penalty proposal and ordering the operator to file its answer
within 30 days or be found in default. No answer or other response
to the show cause order was received by the Commission within that
time.

On February 9, 1989, MSHA transmitted to the Commission's

Docket Office a memorandum indicating, in relevant part, that the
proposed civil penalties in this proceeding had been paid by the
operator. On February 27, 1989, Judge Merlin issued his dismissal
order, based on the information that the civil penalties had been
paid. By letter dated March 3, 1989, the attorney for Coal Junction
transmitted to the Commission an answer stating that Coal Junction
wishes to contest the alleged violations. (The operator's papers do
not refer to Judge Merlin's show cause or dismissal orders, do not
mention the apparent payment of proposed civil penalties, and do not
explain the late filing of the answer.)

The judge's jurisdiction in this matter terminated upon

issuance of his dismissal order. 29 C.F.R. $ 2700.65(c). Under
the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought by filing with the Commission a
petition for discretionary review within 30 days of the decision.
30 U.S.C. $ 823(d)(2); 29 C.F.R. $ 2700.70. Here, we deem Coal
Junction's answer to constitute, in effect, a timely petition for
discretionary review of the judge's dismissal order. See, e.g.,
Middle States Resources, lnc., 10 FMSHRC 1130 (September 1988).

An operator's payment of a civil penalty extinguishes its

right to contest the penalty and the underlying violation, except
where payment has been made by genuine mistake. Old Ben Coal Co.,
7 FMSHRC 205, 207-10 (February 1985). The filing of Coal Junction's
answer, albeit late, suggests that, in the interest of justice, the
operator should be heard with respect to MSHA's assertion that the
penalties have been paid.

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~504
Accordingly, we grant the operator's petition for
discretionary review, vacate the dismissal order, and remand
this matter to the judge for further appropriate proceedings. 1/

                  Ford B. Ford, Chairman

                  Joyce A. Doyle, Commissioner

                  James A. Lastowka, Commissioner

1/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. $ 823(c),
we have designated ourselves a panel of three members to exercise the
powers of the Commission in this matter.