Perovich Properties, Inc. (Commission decision, May 26, 2011)

Plain-English summary

Perovich Properties asked the Commission to reopen a penalty assessment that it believed may have become a final order. After reviewing its records, the Secretary reported that Perovich had timely contested the proposed penalty. The Commission therefore found that the assessment never became a final order. Because there was no final assessment to reopen, the Commission dismissed the request as moot.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 801 and 815(a)
• Outcome: The reopening request was dismissed as moot.
• Key point: A reopening request is unnecessary when the operator timely contested the proposed assessment and it never became final.

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

May 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PEROVICH PROPERTIES, INC.

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Docket No. CENT 2011-663-M

A.C. No. 29-00495-244249

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 April 26, 2011, the Commission received a letter from the President of Perovich Properties, Inc. (“Perovich”) 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.

Having reviewed Perovich’s request and the Secretary’s response, we find the request to reopen to be moot. Perovich 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:

Joel M. Perovich, President

Taos Gravel Products

P.O. Box 1620

El Prado, NM 87529

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