ABC Gravel, Inc. (Commission decision, June 1, 2009)

Plain-English summary

Federal Express could not deliver ABC Gravel's proposed penalty assessment because no one was available at the address, and the package was returned. The Secretary said she would resend the assessment by certified U.S. mail. ABC would then have 30 days after receipt to pay or contest the proposed penalties. Because the assessment had not become final, the Commission denied reopening as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The request to reopen was denied as moot, with the assessment to be mailed again.
• Key point: An undelivered assessment does not become final, so the contest period begins after proper receipt of the remailed assessment.

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 1, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ABC GRAVEL, INC.

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Docket No.WEST 2009-468-M
A.C. No. 24-02250-162526

BEFORE: Duffy, Chairman; Jordan and Young, 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 January 28, 2009, the Commission received a letter regarding a penalty assessment issued to ABC Gravel, Inc. (“ABC”) 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).

ABC states that the assessment at issue, No. 000162526, was not received because there was no one at its address to receive the Federal Express delivery of the assessment. The Secretary confirms that the package was returned undelivered, and states that she will again mail the assessment to ABC, this time by US Postal Service certified mail, and that ABC will then have 30 days after receipt to either pay the proposed assessment or contest it.

Having reviewed ABC’s letter and the Secretary’s response, we deny ABC’s request to reopen as moot. The Secretary may proceed as she has outlined in her response, and, if any of the proposed penalties are contested by ABC, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 440, 441 (July 2006).

Michael F. Duffy, Chairman

Mary Lu Jordan, Commissioner

Michael G. Young, Commissioner

Distribution:

Leon Helmer

ABC Gravel, Inc.

856 Willow Creek

Red Lodge, MT 59068

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