FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004‑1710
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 2023-0185
: A.C. No. 14-01478-574480
NELSON QUARRIES, INC. :
BEFORE: Jordan, Chair; Baker and Marvit, 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. (2018) (“Mine Act”). On January 3, 2024, the Commission received from Nelson Quarries, Inc. (“Nelson”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.
On August 22, 2023, the Chief Administrative Law Judge issued an Order to Show Cause and Order of Default in response to Nelson’s alleged failure to answer the Secretary of Labor’s June 22, 2023 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on September 21, 2023, when it appeared that the operator had not filed an answer within 30 days.
In its motion to reopen, the operator asserts that it never received the Secretary’s petition for assessment of civil penalties. The Secretary does not oppose the operator’s request to reopen. The Secretary notes that the petition for assessment of civil penalties and the Commission’s Order to Show Cause were both sent to an incorrect email address.[1]
Because the Secretary’s petition and the Commission’s orders were sent to an incorrect address there is no final order. The operator’s motion to reopen is moot.
This matter is returned 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. Accordingly, consistent with Rule 28, the Secretary shall re-file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chair
/s/ Timothy J. Baker
Timothy J. Baker, Commissioner
/s/ Moshe Z. Marvit
Moshe Z. Marvit, Commissioner
Distribution:
Kenneth L Nelson, President
Nelson, Quarries
P.O. Box 100
Gas, KS 66742
Paul Nelson, Representative
Nelson Quarries, Inc.
Jasper, MO 64755
pn57885@gmail.com
Patrick Clift, Vice President
Nelson Quarries, Inc.
P.O. Box 100
Gas, KS 66742
patrick.clift@gmail.com
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
Nelson.April@dol.gov
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
Division of Mine Safety and Health
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
Melanie Garris
USDOL/MSHA, OAASEI/CPCO
201 12th Street South, Suite 401
Arlington, VA 22202
Garris.Melanie@DOL.GOV
Chief Administrative Law
Judge Glynn F. Voisin
Federal Mine Safety Health Review Commission
Office of the Chief
Administrative Law Judge
1331 Pennsylvania Avenue, NW Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
[1] The documents were sent to Patrickclift@gmail.com when they should have been sent to Patrick.clift@gmail.com.