Dolezal Sand & Gravel (Commission decision, July 29, 2010)

Plain-English summary

Dolezal Sand & Gravel asked the Commission to reopen a proposed penalty assessment that it believed might have become final. The Secretary's records showed that the company had timely contested the assessment and that an active penalty case was already proceeding under a separate docket. Because the assessment never became a final Commission order, there was nothing to reopen. The Commission dismissed the request as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening request was dismissed as moot because the assessment had been timely contested.
• Key point: Reopening is unnecessary when the proposed penalty is already the subject of an active contest proceeding.

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

July 29, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DOLEZAL SAND & GRAVEL

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Docket No. CENT 2010-138-M

A.C. No. 25-01052-191502

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 November 10, 2009, the Commission received from Dolezal Sand & Gravel (“Dolezal”) 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 and is the subject of an active civil penalty proceeding (Docket No. CENT 2010-142-M). In that proceeding, the Secretary has filed a penalty petition, and the operator has filed an answer.

Having reviewed Dolezal’s request and the Secretary’s response, we find the request to reopen to be moot. Dolezal has properly contested the proposed penalty assessment and therefore it did not become a final order of the Commission. Accordingly, the request to reopen is dismissed as moot.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Larry Dolezal

Dolezal Sand & Gravel

1011 W 7th St.

P.O. Box 523

North Bend, NE 68649

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