<DOC>
[DOCID: f:yk200165.wais]

 
READ SAND & GRAVEL
YORK 2001-65-M
April 16, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3867

                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030


                         April 16, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. YORK 2001-65-M
               Petitioner       : A. C. No. 19-01081-05502
          v.                    : 
                                : Mine:  Read Customs Soils
READ SAND & GRAVEL,             :
               Respondent.      :

                 ORDER DENYING MOTION TO REOPEN
                          ORDER TO PAY

Before: Judge Barbour

     This case is before me pursuant to an order of the
Commission dated October 23, 2001,   remanding this matter for
further consideration and determination as to whether the
operator, Read Sand & Gravel ("Read"), is entitled to relief
under Rule 60(b)(1) of the Federal Rules of Civil Procedure.[1]
Rule 60(b)(1) provides relief from a final judgment in cases
where there has been a  "mistake, inadvertence, surprise, or
excusable neglect."

     This matter arose because Read failed to notify the
Secretary that it wished to contest the proposed penalty within
30 days of receipt of the proposed penalty assessment.  In
support of its request to reopen, Read makes four assertions: 
(1) it does not own, control or manage the subject property;
(2) many of the violations exceed the scope of the Mine Act 
jurisdiction; (3) some of the cited areas are outside of the 
mine area; and (4) the Mine Safety & Health Administration 
("MSHA") did not contact the president and sole shareholder 
regarding visits, issues, or violations.  Letter Dated Feb. 
26, 2001.

     The Secretary filed a response to the request, arguing 
that the first three grounds proffered by Read pertain to 
the substantive merits of the case rather than grounds for 
reopening the matter. Secretary's Motion at 2. Further, the
Secretary states that while the fourth ground may pertain to 
reopening, Read did not provide sufficient evidence to enable 
the Secretary to determine whether reopening is warranted. 
Id. In addition, the Secretary notes that MSHA did receive a 
certified mail receipt indicating that the assessment was 
received by Read. Id. at 2 n.2.

     Subsequently, on December 28, 2001, I issued an order
requiring Read to submit more information as to why it believes
the case should be reopened within 30 days of the date of that
order.  In particular, I instructed Read to explain why it
believes MSHA's failure to contact its president personally
warrants reopening this matter.  I did not receive Read's
response within that time, and, therefore, I issued a second
order on February 20, 2002, in which I gave Read 20 days to 
file the information.  Finally, on March 7, 2002, I received 
a letter from Read dated March 4, 2002.

     In the letter, Read president, Anthony P. Nickinello,
asserts that on or about April 2000, MSHA made an unannounced
visit at the work site of A.D. Makepeace ("A.D."), a cranberry
grower for whom Read removed earthen materials from various
locations. Nickinello states that he purchased Read on January
1, 2000, and continued the operation under the previous set 
of rules and guidelines of A.D.  He further claims an MSHA 
inspector began to direct Read personnel towards presumed 
violations and continued to do so for several months without
the knowledge of Nickinello or A.D. personnel.  Nickinello
contends he became aware of the circumstances while on a site 
visit when a second MSHA inspector arrived to investigate 
prior activity. The inspector, Nickinello further declares, 
informed him of the nature of the inspections, provided a 
correction list, and issued orders, with which Read complied. 
Neither A.D. management nor Read management, according to 
Nickinello, were informed by the "department"[2] that it would
enforce mine safety regulations on an agricultural business. 
He finally asserts that A.D. and Read meet health and safety
regulations, regardless of the agency responsible for ensuring 
compliance.

     It appears that Read is questioning MSHA's jurisdiction
because A.D. is an agricultural business and Read is its vendor.
However, Read's response does not address the inquiry in my
Orders as to why Read did not timely notify the Secretary it
wished to contest the proposed penalty within 30 days of its
assessment.

     Accordingly, since Read has failed to address the issue, 
the request to reopen is DENIED.  Read is ORDERED to pay the 
full proposed penalty assessment of $944.00 within 30 days of 
the date of this order.[3]


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution:

W. Christian Schumann, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington, 
VA 22203 (Certified Mail)

Tyler T. Foster, Controller, Read Sand and Gravel, 171 VFW 
Drive, P. O. Box 546, Rockland, MA 02370 (Certified Mail)

Anthony P. Nickinello, ALM Custom Soils Inc. d/b/a Read Sand
& Gravel, P. O. Box 546, Rockland, MA 02370 (Certified Mail)

dcp


**FOOTNOTES**

     [1]: While  the  Commission is not obligated to adhere to 
the Federal  Rules  of Civil  Procedure,  the  Commission  has  
found guidance and has applied "so far as practicable" Rule 60(b). 
See 29 C.F.R. � 2700.1(b).

     [2]: I assume Nickinello means MSHA.

     [3]: Payment may be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION,  U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE,
P. O. BOX 360250M, PITTSBURGH, PA 15251