FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, D.C. 20001

May 8, 2008

BEFORE: Duffy, Chairman; Jordan and Young, 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 March 31, 2008, the Commission received from Teck-Pogo, Inc. (“Teck-Pogo”) a motion 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).

            On January 24, 2008, Teck-Pogo received a proposed assessment from the Department of Labor’s Mine Safety and Health Administration (“MSHA”) as a result of 56 violations. According to Teck-Pogo, on February 25, it mailed a contest of the assessment to MSHA, which received it on February 29. Teck-Pogo further states that the MSHA’s Office of Assessments treated the contest as untimely filed. In response to Teck-Pogo, the Secretary now states that the proposed assessment was timely contested. The Secretary further states that, because she will process the case as timely contested, the Commission should dismiss the request to reopen as moot.

            Having reviewed Teck-Pogo’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 Teck-Pogo timely contested it. We deny Teck-Pogo’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

Distribution:

Laura E. Beverage, Esq.

Jackson Kelly PLLC

1099 18^th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

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