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.
PRAIRIE STATE GENERATING COMPANY, LLC |
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Docket No. LAKE 2017-158 A.C. No. 11-03193-418476 |
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 February 13, 2017, the Commission received from Prairie State Generating Company, LLC (“Prairie State”) a motion seeking to reopen a penalty assessment that appeared to have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was mailed to Prairie State on August 8, 2016. The proposed assessment became a final order of the Commission on or about September 7, 2016, when it appeared that the operator had not filed a Notice of Contest within 30 days.[1]
Prairie State asserts that it timely contested the proposed assessment on September 6, 2016. Prairie State provided copies of USPS tracking documents showing that its contest was mailed on September 6, 2016 and delivered to MSHA’s Arlington, Virginia office on September 8, 2016. On December 16, 2016, the Secretary issued a delinquency notice to the operator. On December 22, 2016, the operator promptly contacted MSHA regarding the alleged delinquency. Prairie State posits that the Secretary may have misplaced the contest after receipt. The Secretary does not oppose the request to reopen nor does he challenge the assertion that the contest was misplaced.
Having reviewed Prairie State’s request 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, Prairie State notified the Secretary of the contest. This obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the Chief Administrative Law Judge for further proceedings 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:
R. Henry Moore, Esq.
Arthur M. Wolfson, Esq.
Jackson Kelly, PLLC
Three Gateway Center
Suite 1500
401 Liberty Ave.
Pittsburgh, PA 15222
Todd A. Grounds
Safety Manager
Prairie State Generating Company, LLC
4274 Country Hwy 12
Marissa, IL 62257
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
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] MSHA represents in its December 16, 2016 delinquency letter that proposed assessment became a final order on October 31, 2016. The Secretary has not provided the Commission with any explanation as to why MSHA considered the final order date to be more than four months after the proposed assessment was mailed to the operator. Regardless of this discrepancy in the record, the Secretary does not contest Prairie State’s assertion that it filed is contest on September 6, 2017, prior to any possible final order date.