Secretary of Labor v. Carter Roag Coal Company (Commission decision, March 6, 2017)

Plain-English summary

Carter Roag Coal Company asked the Commission to reopen a proposed penalty assessment that appeared to have become final. The Secretary reported that Carter Roag had timely contested the assessment and that an active penalty case already covered it. The Commission held that the assessment never became a final order because the operator had notified the Secretary of its contest. It treated the reopening motion as moot and remanded this duplicate case for dismissal.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was declared moot and the duplicate case was remanded for dismissal.
• Key point: A timely contest prevents a proposed penalty assessment from becoming a final Commission order.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA)         

v.

CARTER
ROAG COAL COMPANY

:

:

:

:

:

:

:

Docket
No. WEVA 2016-86

A.C.
No. 46-08194-391101

BEFORE:    Althen,
Acting 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. (2012) (“Mine Act”).  On November 2, 2015, the Commission received from Carter Roag Coal Company (“Carter Roag”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).  In response to this motion, the Secretary of Labor requests that the motion to reopen be denied as moot.

In
his response, the Secretary states that the penalty assessment that Carter Roag seeks to reopen is already the subject of an active contest case, Docket No. WEVA 2016-107. [1] The Secretary maintains that he received a timely contest of this assessment, and has since filed a penalty petition with the Commission and assigned the case to an attorney.

Having reviewed Carter Roag’s motion and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested the proposed assessment.  Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty. . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a).  Here, Carter Roag notified the Secretary of the contest.  This obviates any need to reopen the penalty assessment.

Accordingly,
the operator’s motion to reopen is moot, and this case is remanded to the Chief Administrative Law Judge for dismissal pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ William I. Althen

William I. Althen, Acting Chairman

/ s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Jonathan
R. Ellis, Esq.

Katrina
N. Bowers, Esq.

Steptoe
& Johnson PLLC

P.O.
Box 1588

Charleston,
WV 25301-1588

W.
Christian Schumann, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

Chief
Administrative Law Judge Robert J. Lesnick

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Ave. N.W., Suite 520N

Washington,
DC 20004-1710

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

U.S.
Department of Labor

201
12th St. South, Suite 500

Arlington,
VA 22202-5450

[1] Commission
records confirm that Docket No. WEVA 2016-107 deals with the penalty assessment at issue.