FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
BROOKFIELD SAND & GRAVEL, INC. |
: : : : : : : |
Docket No. LAKE 2016-253-M A.C. No. 12-02240-396032 |
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, 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. (2012) (“Mine Act”). On April 8, 2016, the Commission received from Brookfield Sand and Gravel, Inc. (“Brookfield”) a motion seeking to reopen a penalty assessment that the Secretary asserted had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On November 16, 2015, Brookfield received a proposed penalty assessment from the Secretary. Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate the operator mailed its contest on December 16, 2015. This was a timely response. See 30 U.S.C. § 815(a) (operator has 30 days within which to notify Secretary it intends to contest citation or penalty); (29 C.F.R. § 2700.8 (Computation of 30 days excludes day from which obligation to respond begins to run).[1] We therefore conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested it.
Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
/s/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
Distribution:
Charlene Devalal
Brookfield Sand & Gravel, Inc.
8587 N. 850 West
Fairland, IN 46126
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450