Little Eagle Coal Co. (Commission decision, July 10, 2008)

Plain-English summary

Little Eagle asked to reopen a proposed assessment because it believed a forwarding delay had caused a late contest. The Secretary reviewed the records and determined that the contest was actually timely. Because the assessment never became a final Commission order, there was nothing to reopen. The Commission denied the motion as moot and directed the penalty proceeding to continue in docket WEVA 2008-957.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was denied as moot because the assessment had been timely contested.
• Key point: Reopening is unnecessary when agency records confirm that the original contest was timely and the merits case is already docketed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 10, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

LITTLE EAGLE COAL CO.

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Docket No. WEVA 2008-1085

A.C. No. 46-08676-141980

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. (2000) (“Mine Act”). On May 8, 2008, the Commission received from Little Eagle Coal Co. (“Little Eagle”) a motion 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).

On February 27, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to Little Eagle Proposed Assessment No. 000141980, which proposed civil penalties for several citations. Little Eagle states that it mailed its contest of the proposed penalties for some of the citations on April 4, 2008, as the result of a delay in forwarding the assessment form. In response, the Secretary states that after reviewing the records in this case, she determined that the contest of the proposed assessment was timely, and docketed by the Commission as WEVA 2008-957.

Having reviewed Little Eagle’s request and the Secretary’s response, we conclude that the proposed assessment at issue has not become a final order of the Commission because Little Eagle timely contested it. We deny Little Eagle’s motion as moot. Appropriate proceedings on Proposed Assessment No. 000141980 shall proceed in Docket No. WEVA 2008-957 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).

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

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 the Civil Penalty Compliance, MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

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

Washington, D.C. 20001