Pinky's Aggregates, Inc.

Plain-English summary

Pinky's Aggregates failed to contest $463 in proposed penalties within 30 days, and the assessment became a final Commission order. The Commission had twice denied reopening because the operator had not adequately explained the late filing. A three-member majority later found an overlooked letter that was meant to accompany an earlier timely submission and concluded that it established good cause. The majority reopened the assessment and remanded the case for further proceedings, directing the Secretary to file a penalty petition within 45 days. Two commissioners dissented because they viewed the later-received letter as an untimely reconsideration request.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.28 and 2700.78(a)
• Outcome: The Commission reopened the $463 assessment and remanded the case for proceedings on the merits.
• Key point: The majority granted relief after discovering an explanatory letter intended for an earlier timely submission, while the dissent would have treated it as an untimely reconsideration request.

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

November 10, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PINKY’S AGGREGATES, INC.

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Docket No. CENT 2009-848-M

A.C. No. 32-00793-188600

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY: Young, Cohen, and Nakamura, Commissioners

On September 22, 2009, the Commission received from Pinky’s Aggregates, Inc. (“PA”)
a letter seeking to reopen Proposed Assessment No. 000188600, which proposed civil penalties
for three citations in the sum of $463. The proposed penalty assessment had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a), because
the operator had failed to contest the proposed assessment within 30 days after receiving it. On
January 12, 2010, the Commission denied the motion without prejudice on the basis that PA had
not provided a sufficiently detailed explanation for its failure to timely contest the proposed
penalties. Pinky’s Aggregates, Inc., 32 FMSHRC 1, 3 (Jan. 2010). On January 27, the
Commission received a second request to reopen. On July 29, the Commission denied the
request, with prejudice, on the basis that the operator had again failed to sufficiently explain its
failure to file a timely contest. Pinky’s Aggregates, Inc., 32 FMSHRC 790, 791-92 (July 2010).

We have discovered a letter from PA, dated January 25, 2010, explaining its failure to
timely file a contest of the proposed penalty assessment, that was intended to be considered with
the earlier, timely submission by PA, but was not. Upon consideration of the letter, we find good
cause for reopening the proposed assessment.

In the interests of justice, we hereby reopen this matter and remand it 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. Accordingly, consistent with Rule 28, the

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28. 

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Chairman Jordan and Commissioner Duffy, dissenting.

As the majority indicates, the Commission received a letter from Pinky’s Aggregates, Inc.
(“PA”) dated January 25, 2010, explaining the untimely filing of the contest of the proposed
penalty assessment. The Commission received the January 25 letter by facsimile on August 24,
2010. There are no notations on the letter explaining the discrepancy between the date of the
letter and the date it was faxed to the Commission.

We would deem the letter received by the Commission on August 24 to constitute a
petition requesting the Commission to reconsider its order of denial issued on July 29, 2010.
Pursuant to Commission Procedural Rule 78(a), a petition for reconsideration must be filed
within 10 days after a decision or order of the Commission has been issued. 29 C.F.R.

§ 2700.78(a). Accordingly, we would deny PA’s petition for reconsideration as untimely.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Distribution:

Jenny Levtin

Office Administrator

Pinky’s Aggregates, Inc.

3731 86th St., N.E.

Rollette, ND 58366

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