JULY2005 

COMMISSION ORDERS 

07-13-2005 Wake Stone Corporation 

07-21-2005 Matthew J. Rizzuto employed by 

Tilcon New York, Inc. 

ADl\flNISTRA TIVE LAW .JUDGE DECISIONS 

07-08-2005 

07-14-2005 

U.S. Steel Mining Company, Inc. 

Currituck Sand, Inc. 

SE 2004-185-M 

YORK 2005-124-M 

SE 2002-126 

SE 2004-154-M 

Pg.513 

Pg.515 

Pg.518 

Pg.520 

The July 2005 issue of the Commission decisions is being reprinted because of a publication error. 

i 

JULY 2005 

No cases were filed in which Review was granted during the month of July 

No cases were filed in which Review was denied during the month of July 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND }IEALTH 

ADMINISTRATION (MSHA) 

v. 

WAKE STONE CORPORATION 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

July .13, 2005 

ORDER 

Docket No. SE 2004-185-M 

A.C. No. 31-02071~26994 

On June 29, 2005, the Secretary of Labor filed a motion to dismiss this appeal as moot 

because the Secretaiy has vacated the citation that formed the basis for this case. Upon 

consideration of the Secretary's motion to dismiss, we hereby grant the motion. The direction for 

review in this case is vacated. 

27 FMSHRC 513 
Distribution 

Robin A. Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2200 Floor West 

Arlington, VA 22209-2247 

Ronald L. Massey, Safety Director 

Wake Stone Corporation 

P.O. Box 190 

Knightdale, NC 27545 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

27 FMSHRC 514 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

MATTHEW J. RIZZUTO, employed by 

TILCON NEW YORK, INC. 

July 21, 2005 

Docket No. YORK 2005-124-M 

A.C. No. 30-00082-47411 A 

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 June 23, 2005, the Commission received from Matthew J. 

Rizzuto a motion made by counsel to reopen a penalty assessment for a violation of section 

llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had apparently 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 and the Commission's Procedural Rules, an 

individual charged with a violation under section llO(c) has 30 days following receipt of the 

Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or 

she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27. 

On January 5, 2005, the Department of Labor's Mine Safety and Health Administration 

("MSHA") mailed a proposed penalty assessment to Rizzuto alleging that he was personally 

liable under section l lO(c) of the Mine Act for a citation (No. 6017456) issued to his employer, 

Tilcon New York, Inc. Mot. at 1-2. Rizzuto states that the proposed assessment against him was 

sent to the wrong address and that he did not receive it before the time to contest it had elapsed. 

Id. at 2. Counsel for Rizzuto only learned of the Secretary's section 110( c) allegations against 

27 FMSHRC 515 
Rizzuto on June 22, 2005 when counsel for the Secretary informed her of difficulties MSHA had 

encountered in serving papers on Rizzuto. Id. Rizzuto also asserts that he had every intention of 

contesting any proposed section llO(c) penalties against him. Id. at 2-3. The Secretary does not 

oppose Rizzuto' s request for relief. 

·Here, the proposed penalty assessment was mailed to a nonexistent address. The agency 

had in fact previously sent mail to Rizzuto at his proper addresS:- Mot. at Ex. B. Under these 

circumstances, we conclude that Rizzuto did not "receive" the penalty assessment, within the 

meaning of section 105( a) of the Mine Act and the Commission's Procedural Rules, until at least 

June 22, 2005. See Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998). In his motion to 

reopen this matter, filed with the Commission on June 23, 2005, Rizzuto clearly states his intent 

to contest the proposed penalty assessment against him. We conclude from this that Rizzuto 

timely notified the Secretary that he contests the proposed penalty. Id. 

Accordingly, the proposed penalty assessment is not a final order of the Commission. 

We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. 

Part 2700. 

27 FMSHRC 516 
Distribution 

Margaret S. Lopez, Esq. 

Ogletree, ·Deakins, Nash, 

Smoak & Stewart, P.C. 

2400 N Street, N. W., Fifth Floor 

Washington, D. C. 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey A venue, N. W., Suite 9500 

Washington, D. C. 20001 

27 FMSHRC 517 

ADMl~STRATIVE LAW JUDGE DEQSIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW ruDGES 

601 New Jersey Avenue. N.W., Suite 9500 

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION .(MSHA), 

Petitioner 

V. 

U.S. STEEL .MINING COMPANY, JNC., 

Respondent 

July 8. 2005 

CIVIl. PENALTY PROCEEDING 

Docket No. SE 2002-126 

A. C. No. 01-00329-03591 

Concord Mine 

DECISION APPROVING SETTLEI\1ENT 

Before: Judge Melick 

This case is before me upon a petition for assessment of civil penalty under Section 

105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). The case was remanded by 

the Commission on May 16, 2005, for further proceedings. Petitioner has now filed a motion to 

approve a settlement agreement and to dismiss the case. A reduction in penalty to $25.00, is 

proposed. I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is acceptable under the criteria set forth in Section l lO(i) 

of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that Respondent pay a penalty of $25.00, within 40 days of this order. 

Gary Melick 

Administrative Law Judge 

202-434-9977 

27FMSHRC 518 
Distribution: (First Class Mail) 

Dane L. Steffenson, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W., 

Room 7Tl0, Atlanta, GA 30303 

Anthony Jeselnik, Esq., U.S. Steel Tower, Fifteenth Floor, 600 Grant Street, Pittsburgh, PA 

15219 

/lh 

27 FMSHRC 519 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CURRITUCK SAND INC., 

Respondent 

Washington, O.C. 20001 

July 14, 2005 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2004-154-M 

A. C. No. 31-02188-22481 

Bluebird#l 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

This case is before me upon a petition for ~sessment of civil penalty under Section 

105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the case. A reduction in penalty to 

$1,100.00, is proposed. I have considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is acceptable under the criteria set forth in 

Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that Respondent pay a penalty of $1,100.00, within 40 days of this order. 

Distribution: (First Class Mail) 

Gary Melick 

Administrative Law Judge 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22nd Floor West, Arlington, VA 22209-2247 

Leslie Paul Brody, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W., Room 

7T10, Atlanta, GA 30303 

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, :MD 20705 

27 FMSHRC 520 

G:l> U.S. GO V!RNMENT PRINTING O FFICE: 2005- 310-091125302