Ezel / Agency Decisions / kent-88-23-r-commission-2
FMSHRC Commission decision Docket KENT 88-23-R, KENT 88-24-R, KENT 88-25-R, KENT 88-26-R, KENT 88-27-R Decided May 26, 1988 Remanded

Rivco Dredging Corporation

Rivco Dredging Corporation (FMSHRC KENT 88-23-R and related dockets): Penalty contest remanded

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This is citable Commission precedent from 1988, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.

Currency note: this decision dates from 1988
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Federal Mine Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance under 30 U.S.C. § 816; check subsequent history before relying on it. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Rivco Dredging contested citations and orders but did not separately notify the Secretary that it intended to contest the proposed civil penalties. An ALJ dismissed the contest, and Rivco sought discretionary Commission review, explaining that it had misunderstood the separate penalty-contest requirement. The Commission found that Rivco appeared to have acted in good faith, granted review, vacated the dismissal, and remanded for the ALJ to evaluate Rivco's explanation and the Secretary's timeliness argument.

Decision snapshot

  • Cited authority: 30 U.S.C. § 815(a)
  • Outcome: The ALJ's dismissal was vacated and the matter was remanded for further proceedings.
  • Key point: An operator's good-faith procedural misunderstanding may warrant an opportunity to explain why it did not separately contest proposed penalties.

Full text (FMSHRC public release)

CCASE:
RIVCO DREDGING V. MSHA
DDATE:
19880526
TTEXT:
FMSHRC-WDC

May 26, 1988

RIVCO DREDGING CORPORATION

v. Docket Nos. KENT 88-23-R
KENT 88-24-R
SECRETARY OF LABOR, KENT 88-25-R
MINE SAFETY AND HEALTH KENT 88-26-R
ADMINISTRATION (MSHA) KENT 88-27-R

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

ORDER

BY THE COMMISSION:

In this contest proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982),
the Secretary of Labor filed a motion to dismiss the contest
proceeding based upon the failure of Rivco Dredging Corporation
("Rivco") to notify the Secretary that it intended to contest the
civil penalties subsequently proposed for the contested citations
and orders. On April 20, 1988 Commission Administrative Law Judge
Roy J. Maurer issued an order of dismissal. Rivco filed a response
in opposition to the Secretary's motion, claiming that it believed
that its previous contest of the citations and orders was sufficient
to place the penalties in issue. However, the response was not
received until after the judge entered his dismissal order.
Rivco filed a Petition for Discretionary Review alleging, in
essence, that it had failed to notify the Secretary of its intent to
contest the penalties because it had already filed a timely Notice of
Contest relating to these alleged violations, and was unaware that a
contest of the civil penalty proposals was also required. On May 25,
1988, the Secretary filed a response to Rivco's Petition for
Discretionary Review.
It appears that this operator, acting pro se, acted in good
faith but misunderstood the need to object separately to the two
different aspects of the same dispute. See 30 U.S.C. $ 815(a)
(contest of proposed civil penalties). Cf. Old Ben Coal Co., 7 FMSHRC
205 (February 1985). This Commission has recognized that, in cases
like this, innocent procedural missteps alone should not operate to
deny a party the opportunity to present its objections to citations or

Page 2

~625
In the interest of justice, we conclude that Rivco should be
given the opportunity to present to the administrative law judge the
reasons for its failure to contest the civil penalty proposals and the
judge should evaluate its explanation in light of the precedents cited
above. The judge should also address the timeliness issue raised by
the Secretary in its response to Rivco's petition for discretionary
review. Accordingly, we grant the petition for review, vacate the
judge's order of dismissal of the contest proceeding, and remand the
matter for proceedings consistent with this order.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner
~626
Distribution
Gene A. Wilson, President
Rivco Dredging Corporation
P.0. Box 702
Louisa, Kentucky 41230
G. Elaine Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Road
Suite B-201
Nashville, TN 37215
Dennis Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

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