FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004‑1710
January 28, 2014
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
BOB BAK CONSTRUCTION |
Docket No. CENT 2011-372-M A.C. No. 39-01328-243566
|
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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) (AMine Act@). On January 10, 2014, the Commission received from Bob Bak Construction (ABob Bak@) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.
On December 14, 2011, the Chief Administrative Law Judge issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Bob Bak=s perceived failure to answer the Secretary=s March 11, 2011 Petition for Assessment of Civil Penalty.
Bob Bak asserts that it answered the penalty petition and encloses a copy mailed to MSHA and the Commission on April 19, 2011. Bob Bak further states that it was unrepresented by counsel at the time it received the Show Cause Order and thought no further action was necessary after responding to the penalty petition. The Secretary of Labor does not oppose the request to reopen, and notes that the documentary record indicates that an answer to the penalty petition was properly filed and served on the Secretary.
Having reviewed Bob Bak=s request and the Secretary=s response, we conclude that the Show Cause Order did not effectively become a Default Order because the operator had filed a response to the penalty petition. Accordingly, because this case was assigned to Administrative Law Judge William B. Moran, we are remanding it to him for further proceedings pursuant to the Mine Act and the Commission=s Procedural Rules, 29 C.F.R. Part 2700.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner
Distribution:
Christopher D. Pence, Esq.
Hardy Pence, PLLC
500 Lee Street, East, Suite 701
P.O. Box 2548
Charleston, WV 25301
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge William B. Moran
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004