Kembel Sand & Gravel (Commission decision, June 13, 2011)

Plain-English summary

Kembel Sand & Gravel asked the Commission to reopen a penalty assessment involving two other dockets. In one docket, the operator had timely contested the assessment and the case was already proceeding before the Chief Administrative Law Judge after a show-cause response. In the other, the parties had settled and the Chief Judge had approved the settlement. Because both matters were already resolved or moving through the proper process, the Commission dismissed the reopening request as moot in all respects.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The request to reopen was dismissed as moot.
• Key point: A reopening request is unnecessary when the underlying penalties are already in active litigation or have been resolved by settlement.

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

June 13, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

KEMBEL SAND & GRAVEL

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Docket No. CENT 2011-432-M

A.C. No. 25-01033-224809

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 February 18, 2011, the Commission received from Kembel Sand & Gravel (“Kembel”) 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 this request to reopen actually involves two other penalty cases: Docket Nos. CENT 2010-1072-M and CENT 2010-1073-M. With respect to Docket No. CENT 2010-1072-M, involving Citation Nos. 6426384 and 6426385, the operator successfully contested the proposed assessment, and a penalty petition was filed by the Secretary on September 13, 2010. The Secretary asserts that because the operator failed to answer the petition, she filed a motion for issuance of order of default on January 4, 2011. Instead of filing an answer, the operator appears to have filed this motion to reopen on February 18, 2011, with the Commission. Chief Administrative Law Judge Robert J. Lesnick issued a show cause order on March 15, 2011, and the operator filed a timely response to that order on April 8, 2011.

Because the matter is now proceeding before the Chief Judge, the motion to reopen with regard to these two citations is no longer necessary and is moot.

With respect to Docket No. CENT 2010-1073-M, involving Citation Nos. 6426382 and 6426383 contained on the same penalty assessment at issue, the Secretary states that the parties have agreed on a settlement and that a Decision Approving Settlement was issued by the Chief Judge on February 2, 2011. Therefore, we also dismiss the request as moot as to the penalties at issue in Docket No. CENT 2010-1073-M.

Having reviewed Kembel’s request and the Secretary’s response, we find the request to reopen to be moot in all respects. Accordingly, the request is dismissed.

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Mary Lu Jordan, Chairman

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Michael F. Duffy, Commissioner

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Michael G. Young, Commissioner    

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Robert F. Cohen, Jr., Commissioner

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Patrick K. Nakamura, Commissioner

Distribution:

Lon R. Hascal, President

Kembel Sand & Gravel

P.O. Box 118

Scottsbluff, NE 69363

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

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