Cortez Joint Venture (Commission decision, April 28, 2011)

Plain-English summary

Cortez Joint Venture asked the Commission to reopen a proposed penalty assessment that it believed might have become final. After reviewing its records, the Secretary confirmed that Cortez had timely contested the assessment. The Commission therefore held that the assessment never became a final order and dismissed the reopening request as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The request to reopen was dismissed as moot because the penalty contest was timely.
• Key point: No reopening is needed when agency records confirm that the operator filed its contest within the statutory deadline.

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

April 28, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

CORTEZ JOINT VENTURE

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Docket No. WEST 2011-576-M

A.C. No. 26-00827-216609

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 February 2, 2011, the Commission received from Cortez Joint Venture (“Cortez”) a letter by counsel seeking to reopen a penalty assessment 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).

The Secretary submits that, upon reviewing the records in this proceeding, she has discovered that the proposed penalty was timely contested.

Having reviewed Cortez’s request and the Secretary’s response, we find the request to reopen to be moot. Cortez has properly contested the proposed penalty assessment and, therefore, it did not become a final order of the Commission. Accordingly, the request to reopen is dismissed as moot.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution

Michael T. Heenan, 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

Melanie Garris

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