Pacific Power & Light Company (Commission decision, December 1, 2010)

Plain-English summary

Pacific Power asked the Commission to reopen a proposed penalty assessment involving Citation No. 6419908. The Secretary reviewed the record and reported that MSHA had vacated the underlying citation. Because no penalty dispute remained to reopen, the Secretary urged dismissal on mootness grounds. The Commission denied Pacific Power's request as moot.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: The reopening request was denied as moot because MSHA had vacated the underlying citation.
• Key point: Reopening relief is unnecessary once the citation supporting the proposed assessment has been vacated.

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

December 1, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

PACIFIC POWER & LIGHT COMPANY

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Docket No. WEST 2010-1625-M

A.C. No. 48-00152-188933 U10

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 July 30, 2010, the Commission received from Pacific Power & Light Company (“Pacific Power”) a request by counsel 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 determined that the underlying citation in this proceeding, Citation No. 6419908, contained on Proposed Assessment No. 000188933, has been vacated. Accordingly, she submits that the request to reopen should be denied as moot.

Having reviewed Pacific Power’s request and the Secretary’s response, we deny the request to reopen as moot because the citation in question has been vacated.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Jason W. Hardin, Esq.

Fabian & Clendenin

215 S. State Street, Suite 1200

Salt Lake City, UT 84111-2323

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.

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