FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
November 13, 2009
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. BAYER CONSTRUCTION COMPANY, INC. |
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BEFORE: Jordan, Chairman; Duffy, 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. (2006) (“Mine Act”). On August 11, 2009, the Commission received from Bayer Construction Company (“Bayer”) a letter 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).
The Secretary submits that upon reviewing the records in this proceeding, she has discovered that the proposed penalty was timely contested. The operator made its contest of the penalties at issue in a cover letter that also contained the payment check for some other penalties and did not include the proposed assessment form. The Secretary asserts that she has corrected her records and the agency is treating the matter as having been timely filed.
Having reviewed Bayer’s request and the Secretary’s response, we find the request to reopen to be moot. Bayer has timely contested the proposed penalty assessment, and therefore it did not become a final order of the Commission. The Secretary shall file a penalty petition within 45 days of the date of this order, if she has not done so already. This case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
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Mary Lu Jordan, Chairman
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Michael F. Duffy, Commissioner
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Michael G. Young, Commissioner
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Robert F. Cohen, Jr., Commissioner
Distribution
Stan Hambright, Safety Manager
Bayer Construction Co., Inc.
P.O. Box 889
Manhattan, KS 66505-0889
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 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