Brown Excavation Company, Inc. (Commission decision, January 6, 2011)

Plain-English summary

Brown Excavation asked the Commission to reopen two final penalty assessments, and the Secretary opposed the requests. MSHA's data system later showed that Brown had paid the penalties, but neither party filed an update after the initial pleadings. The Commission ordered Brown to explain within 30 days why reopening should not be denied as moot. Brown did not respond, and the later order in york-2010-239-m-commission denied the requests as moot.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 801 and 815(a)
• Outcome: Brown was ordered to show cause within 30 days why its reopening requests should not be denied as moot.
• Key point: Payment of the penalties raised a mootness issue that required the operator to explain whether any live dispute remained.
• Subsequent order: york-2010-239-m-commission denied reopening as moot after no response.

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

January 6, 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.

It appears from a review of the Data Retrieval System maintained by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) that the operator has paid the civil penalties that are the subject of its request to reopen. The parties have not filed pleadings subsequent to the May 2010 pleadings to inform the Commission of any change in status of these proceedings.

Brown is hereby ordered to show cause within 30 days of the date of this order why its request to reopen should not be denied 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 Co., Inc.

2735 State Rte. 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