Rowan Construction Company (Commission decision, March 4, 2009)

Plain-English summary

A proposed penalty assessment was delivered to Rowan Construction's building, but another tenant accepted it and passed it to Rowan later. Rowan notified the Secretary that it wanted to contest the assessment after receiving it, and the Secretary did not oppose relief. The Commission held that Rowan's contest was timely because the assessment had not reached the company when the other tenant accepted delivery. It concluded that the assessment was not a final order, denied the reopening motion as moot, and remanded the case for further proceedings.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.28 and 30 U.S.C. § 815(a)
• Outcome: The motion was denied as moot, and the penalty case was remanded for further proceedings.
• Key point: Delivery to another tenant in the same building did not start Rowan's contest period before Rowan actually received the assessment.

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

March 4, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ROWAN CONSTRUCTION COMPANY

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Docket No. SE 2009-125-M
A.C. No. 08-01215-131854

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 November 14, 2008, the Commission received from Rowan Construction Company (“Rowan”) a motion by counsel 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).

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).

The Secretary states that she does not oppose the reopening of the proposed penalty assessment.

Here, the proposed assessment was delivered to Rowan’s building, but another tenant at that location accepted delivery of the assessment. Sometime later, the tenant gave the assessment to Rowan. Thereafter, Rowan timely notified the Secretary of its intent to contest the assessment.

Accordingly, the proposed penalty assessment is not a final order of the Commission, and Rowan’s motion is moot. We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. See State of Alaska Dep’t of Transp. and Pub. Facilities, 29 FMSHRC 389, 390 (June 2007). 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.

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Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Distribution:

William K. Doran, Esq.

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

2400 N Street NW, 5th Floor

Washington, DC 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021