Hancock Materials, Inc. (Commission decision, May 14, 2009)

Plain-English summary

MSHA mailed Hancock Materials a proposed assessment after the operator had gone out of business. The assessment was returned undelivered, and Hancock did not learn of it within the 30-day contest period. The Secretary agreed that service had not occurred and said she would mail the assessment to the address Hancock provided in the Commission proceeding. Because no final order existed, the Commission denied reopening as moot and allowed the normal payment or contest process to begin after delivery.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The request to reopen was denied as moot, with the assessment to be mailed to a valid address.
• Key point: An assessment returned undelivered does not become a final Commission order.

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

May 14, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

HANCOCK MATERIALS, INC.

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Docket No. WEST 2009-423-M
A.C. No. 42-01122-150148

BEFORE: Duffy, Chairman; Jordan and Young, 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 January 22, 2009, the Commission received a letter seeking to reopen a penalty assessment issued to Hancock Materials, Inc. (“Hancock”) that may have 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).

Hancock seeks reopening on the grounds that it became aware of Proposed Assessment No. 000150148 more than 30 days after it had been issued, at a time when the operator was no longer in business. The Secretary of Labor confirms that Hancock was no longer in business when the proposed assessment was mailed and further states that the proposed assessment was returned to the Department of Labor’s Mine Safety and Health Administration (“MSHA”) as undelivered. She submits that because service of the proposed assessment was not achieved, the assessment did not become a valid final order. The Secretary states that she will mail the proposed assessment to the address provided by Hancock, and Hancock will then have 30 days after receipt to either pay the proposed assessment or contest it.

Having reviewed Hancock’s request and the Secretary’s response, we deny Hancock’s motion as moot. The Secretary may mail the proposed assessment to Hancock at the address provided in this proceeding, and this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

See Lehigh Cement Co., 28 FMSHRC
440, 441 (July 2006).

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Distribution:

Dirk Hancock

Hancock Materials, Inc.

360 South 5th Place

Show Low, AZ 85901

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