Brown Excavation Company, Inc. (Commission decision, March 14, 2011)

Plain-English summary

Brown Excavation asked the Commission to reopen two penalty assessments that had become final orders. MSHA's data system showed that Brown had since paid the civil penalties covered by the request. The Commission ordered Brown to explain within 30 days why the request should not be denied as moot. Brown did not respond, so the Commission denied reopening as moot.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 801 and 815(a)
• Outcome: The requests to reopen two final assessments were denied as moot.
• Key point: Payment of the disputed penalties and failure to answer a show-cause order left no live reopening request for the Commission to decide.

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

March 14, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BROWN EXCAVATION COMPANY, INC.

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Docket No. YORK 2010-239-M

A.C. No. 30-02994-206555

Docket No. YORK 2010-240-M

A.C. No. 30-02994-211798

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On May 4, 2010, the Commission received from Brown Excavation Company (“Brown”) a letter seeking to reopen penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On May 26, 2010, the Secretary of Labor filed oppositions to the operator’s request to reopen.

On January 6, 2011, we issued an order directing Brown to show cause within 30 days of the date of the order why its request to reopen should not be denied as moot. We noted that a review of the Data Retrieval System maintained by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) revealed that the operator has paid the civil penalties that are the subject of its request to reopen.

Brown has filed no response to the show cause order. Accordingly, we deny Brown’s request to reopen as moot.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Jodi Flaherty

Brown Excavation Company, Inc.

2735 State Route 49

West Monroe, NY 13167

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