Troy Mine, Inc. (Commission decision, September 26, 2011)

Plain-English summary

Troy Mine asked to reopen a penalty assessment after MSHA said the company had not filed a timely contest. The company produced certified-mail receipts showing delivery to MSHA. The Secretary then confirmed that the assessment was already part of an active civil penalty case. The Commission found that the contest was timely, the assessment never became a final order, and the reopening request was moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening request was dismissed as moot because the assessment had been timely contested.
• Key point: Reopening is unnecessary when delivery records and the active penalty docket show that the operator timely contested 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

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

TROY MINE, INC.

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Docket No. WEST 2011-929-M

A.C. No. 24-01467-249462-02

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 May 6, 2011, the Commission received from Troy Mine, Inc. (“Troy Mine”) a motion 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).

Troy Mine asserts that it timely mailed its contest form to the MSHA Civil Penalty Compliance Office, and submits copies of Certified Mail receipts showing it was signed for by an MSHA employee. However, it was informed by MSHA that it failed to timely contest the proposed penalty assessment. The Secretary submits that upon reviewing the records in this proceeding, she has discovered that the proposed penalty is the subject of an active civil penalty proceeding (Docket No. WEST 2011-886-M). In that proceeding, the Secretary’s penalty petition was filed on May 23, 2011. Based upon these findings, the Secretary submits that the request to reopen should be dismissed as moot.

Having reviewed Troy Mine’s request and the Secretary’s response, we find that Troy Mine timely 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.

/s/______

Mary Lu Jordan, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Renee M. Guisewite, PHR

Troy Mine, Inc.

P.O. Box 1660

Troy, MT 59935

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

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

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