Absmeier Landscaping and Construction, LLC (Commission decision, June 3, 2011)

Plain-English summary

Absmeier Landscaping and Construction asked the Commission to reopen a penalty assessment that had become a final order. The Secretary opposed the request. The Commission's review of MSHA's online records indicated that Absmeier had paid the penalty for the citation at issue. Because neither party had updated the Commission about the case, the Commission ordered Absmeier to explain within 30 days why the reopening request should not be denied as moot. Failure to respond on time would cause the request to be deemed denied without another order.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 801 and 815(a)
• Outcome: Absmeier was ordered to show cause within 30 days why its reopening request should not be denied as moot.
• Key point: Payment of the penalty may make a request to reopen the assessment moot, and failure to answer the show-cause order results in denial.

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 3, 2011

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ABSMEIER LANDSCAPING AND

CONSTRUCTION, LLC

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Docket No. WEST 2011-249-M

A.C. No. 05-04358-225893

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 November 23, 2010, the Commission received a request to reopen a penalty assessment issued to Absmeier Landscaping and Construction, LLC (“Absmeier”) that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor filed a response opposing the operator’s request dated December 23, 2010.

Based upon a review of the Mine Safety and Health Administration’s online data retrieval system, it appears that Absmeier has paid the civil penalty for Citation No. 6446353, which is the subject of its request to reopen. The parties have not filed pleadings subsequent to the Secretary’s opposition to inform the Commission of any change in the status of this proceeding.

Absmeier is hereby ordered to show cause within thirty (30) days of the date of this order why its request to reopen should not be denied as moot because the penalty has been paid. In the event that Absmeier fails to timely respond to this order, its request will be deemed denied without further order of the Commission.

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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:

Adrian Absmeier

Absmeier Landscaping & Construction, LLC

P.O. Box 1134

1424 21st Street

Alamosa, CO 81101

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