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[DOCID: f:wva200094.wais]
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CONSOLIDATION COAL COMPANY
October 13, 2000
WEVA-2000-94
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
October 13, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 2000-94
: A.C. No. 46-01318-04436
CONSOLIDATION COAL COMPANY :
BEFORE: Jordan, Chairman; Riley, and Verheggen, Commissioners[1]
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act"). On September 5, 2000, Chief Administrative Law
Judge David Barbour issued an Order of Dismissal to Consolidation
Coal Company ("Consolidation") dismissing this civil penalty
proceeding for payment of the proposed penalty. On October 3,
2000, the Commission received from Consolidation a request to
vacate the judge's dismissal order. The Secretary of Labor does
not oppose the motion for relief filed by Consolidation.
In its motion, Consolidation asserts that it timely
submitted a request for a hearing ("green card") to contest the
proposed penalty associated with Order No. 7087724, but that it
inadvertently paid the assessment along with six other penalties
it intended to pay, which were issued by the Department of
Labor's Mine Safety and Health Administration at the same time.
Mot. at 1. Consolidation contends that on August 9, 2000, the
day after it had sent payment in the amount of $3,900 for the
proposed assessment, it called MSHA's Assessment Office to advise
them that it had mistakenly paid the penalty and that it still
intended to contest it. Id. Consolidation states that MSHA
informed it that the payment would be held pending settlement or
adjudication. Id. Consolidation contends that on September 11,
2000, it received the Secretary's Petition for Assessment of
Penalty in this case, but was subsequently informed by counsel
for the Secretary that on September 5, 2000, Judge Barbour had
entered an order dismissing this case in light of payment. Id.
at 2. Consolidation offers that the documents must have crossed
in the mail, creating confusion. Id. Consolidation requests
that the Commission reopen this proceeding. Id.
The judge's jurisdiction in this matter terminated when his
decision was issued on September 5, 2000. 29 C.F.R. �
2700.69(b). Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by filing a
petition for discretionary review within 30 days of its issuance.
30 U.S.C. � 823(d)(2); 29 C.F.R. � 2700.70(a). We deem
Consolidation's motion to be a timely filed petition for
discretionary review, which we grant. See, e.g., Middle States
Resources, Inc., 10 FMSHRC 1130 (Sept. 1988).
It appears from the record that on August 4, 2000, the
Commission received Consolidation's timely-filed request for a
hearing to contest the proposed penalty assessment at issue in
this civil penalty proceeding. On August 30, 2000, MSHA sent to
the Commission via facsimile a confirmation of its receipt of
Consolidation's payment in this matter. Consequently, on
September 1, 2000, Chief Judge Barbour issued an order assigning
this case to himself, and on September 5, issued an order of
dismissal. After Chief Judge Barbour's dismissal order, the
Secretary of Labor filed a Petition for Assessment of Penalty in
this case on September 11, 2000.
The record indicates that Consolidation contested the
proposed assessment associated with Order No. 7087724 by timely
returning the green card, but subsequently inadvertently paid the
assessment. The record evidence sufficiently supports
Consolidation's allegations of inadvertent payment. In similar
circumstances, the Commission previously has granted an
operator's unopposed request for relief where the operator
inadvertently paid a penalty assessment. See Cyprus Emerald
Resources Corp., 21 FMSHRC 592 (June 1999) (granting motion to
reopen where operator supported its allegation that it mistakenly
paid proposed penalty assessment with an affidavit); see also
Stillwater Mining Co., 19 FMSHRC 1021 (June 1997) (granting
operator's motion to reopen where operator inadvertently paid
assessment because Secretary failed to send assessment to its
counsel of record).
**FOOTNOTES**
[1]: Commissioner Beatty recused himself in this matter and
took no part in its consideration. Pursuant to section 113(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 823(c), this panel of three Commissioners has been designated to
exercise the powers of the Commission.
For the foregoing reasons, we vacate the judge's dismissal
order and remand this matter to the judge for further
proceedings. See REB Enterprises, Inc., 18 FMSHRC 311, 313
(Mar. 1996). The case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Distribution:
Robert Vukas, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Chief Administrative Law Judge David Barbour, Federal Mine Safety
& Health Review Commission, 1730 K Street, N.W., Suite 600, Wash-
ington, D.C. 20006