Kaw Valley Sand & Gravel, Inc. (Commission decision, May 20, 2008)

Plain-English summary

Kaw Valley sought to reopen two proposed penalty assessments after receiving collection calls. Its Federal Express receipt showed that the contests were delivered to MSHA, and the Secretary conceded that an MSHA employee signed for them even though the Civil Penalty Compliance Office had no record of the documents. The Commission held that the assessments never became final orders because Kaw Valley timely contested them. It denied the reopening motion as moot and remanded the cases for further proceedings on the penalties.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was denied as moot, and both timely contested assessments were remanded for further proceedings.
• Key point: Proven timely delivery of a penalty contest prevents the proposed assessment from becoming a final Commission order, even if MSHA later cannot locate the document.

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, D.C. 20001

May 20, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

KAW VALLEY SAND & GRAVEL, INC.

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Docket No. CENT 2008-412-M

A.C. No. 14-00894-118141

Docket No. CENT 2008-413-M

A.C. No. 14-01667-118250

BEFORE: Duffy, 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. (2000) (“Mine Act”).

On March 20, 2008, the Commission received from Kaw
Valley Sand and Gravel, Inc. (“Kaw Valley”) a letter seeking to reopen two penalty assessments that may have become final orders 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).

Kaw Valley states that, on June 5, 2007, it submitted contests of two penalty assessments that had been issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). The proposed penalty assessments were apparently issued to Kaw Valley on May 16, 2007. With its request for relief, Kaw Valley submitted a Federal Express tracking receipt that indicates that the contests were delivered on June 6 to MSHA’s Arlington, Virginia office. Kaw Valley also states that it has been receiving unwarranted collection calls. In response, the Secretary concedes that the contests were delivered to MSHA and signed for by an MSHA employee; however, the Secretary further states that MSHA’s Civil Penalty Compliance Office has no record of having actually received the contest documents.

Having reviewed Kaw Valley’s request and the Secretary’s response, we conclude that the proposed assessments at issue have not become final orders of the Commission because Kaw Valley timely contested them. We deny Kaw Valley’s motion as moot and remand this matter to the Chief Administrative Law Judge for further proceedings as appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 440, 441 (July 2006).

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Alan R. Teutemacher

Safety Director

Kaw Valley Companies, Inc.

5600 Kansas Ave.

Kansas City, KS 66106

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

U.S. Department 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