FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 14, 2008

BEFORE: Duffy, 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. (2000) (“Mine Act”). On July 7, 2008, the Commission received from Krystal Gravel (“Krystal”) a letter seeking to reopen an 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). 

            On April 3, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to Krystal a proposed assessment as a result of 18 citations that were issued in February 2008. On April 22, Krystal mailed a letter to MSHA’s Civil Penalty Compliance Office in which Krystal stated that it did not contest the violations but that it needed “help on the assessment amounts” and that penalties were “calculated wrong and are too high.” In response, the Secretary states that she does not oppose reopening the proposed assessment but that Krystal’s letter was not adequate to contest a proposed assessment.

            Having reviewed Krystal’s request and the Secretary’s response, we conclude that the proposed assessment at issue has not become a final order of the Commission because Krystal effectively timely contested it. We deny Krystal’s motion as moot and remand this matter to the Chief Administrative Law Judge for further proceedings as appropriate, 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 

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

John C. Sojourner, Jr.

Krystal Gravel, Inc.

113 BoBo Drive

Crystal Springs, MS 39059

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. Department 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