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)

MEDINA CRUSHED STONE, INC.

Docket No.

A.C. No.

Docket No.

A.C. No.

CENT 2010-1205-M

41-03594-228066

CENT 2010-1206-M

41-03594-228066

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

ORDER

BY THE COMMISSION:

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On August 20, 2013, the Commission received from Medina Crushed Stone, Inc. (“Medina”) a motion seeking to reopen two penalty assessment proceedings and relieve it from the Default Orders entered against it.¹

In Docket No. CENT 2010-1205-M, the Chief Administrative Law Judge issued an Order to Show Cause on March 9, 2012, which by its terms became a final order on April 9, 2012 when the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Medina’s failure to answer the Secretary of Labor’s January 25, 2011 Petition for Assessment of Civil Penalty.

In Docket No. CENT 2010-1206-M, an Administrative Law Judge issued an Order to Show Cause on November 19, 2012 in response to the Secretary’s repeated unsuccessful attempts to contact Medina. On January 16, 2013, the Judge issued a Default Decision after Medina failed to respond to the show cause order.

Medina asserts that it did not receive much of the paperwork associated with both cases because it was sent to the addresses of a terminated employee and of Martin Marietta Materials Southwest, Inc. (“Martin”), the company that Medina sold the portable rock crushing plant to in 2011. Regarding Docket No. CENT 2010-1205-M, the record indicates that Show Cause Orders were issued on February 9, 2012 and March 9, 2012, to the terminated employee and Martin, respectively. The first Show Cause Order was returned as undeliverable, but the second order was delivered to Martin on March 15, 2012.

Medina further asserts that it paid $3,300 in response to a properly addressed delinquency notice, dated July 23, 2012. Despite the payment, Medina notes that it received a collection notice, dated September 19, 2012, and promptly notified MSHA. Medina states in its response to the Secretary’s opposition that, in its communications with MSHA, it was told that the payment of $3,300 for Docket No. CENT 2010-1205-M would terminate all its debts. Therefore, Medina believed that it had satisfied all its responsibilities and was not notified otherwise.

The Secretary confirms that MSHA received a payment of $3,300 by check, dated August 17, 2012, which was later applied to CENT 2010-1205-M after Medina contacted MSHA. The Secretary considers Docket No. CENT 2010-1205-M to be paid in full and thus ineligible for reopening.

Although payment of contested citations may be a grounds for finding a motion to reopen moot, we have made limited exceptions where there exists clear evidence that an operator made the payment by mistake or inadvertence. See, e.g., McCoy Elkhorn Coal Corp., 33 FMSHRC 1, 2 (Jan. 2011). Based on the record, it is uncontradicted that Medina was under the mistaken belief that a payment of $3,300 would satisfy all penalties relating to A.C. No. 000228066. Medina was never served with any document stating that the contested citations had been split into two dockets, and the delinquency and collection notices that prompted the payment only refer to the A.C. Number, not the docket with which the penalty is associated.

Regarding Docket No. CENT 2010-1206-M, in a letter dated January 30, 2012, Medina asserted that it did not receive any paperwork after contesting the proposed assessment. The Show Cause Order and the Default Decision were delivered to the new owner of the portable plant on November 26, 2012 and January 23, 2013, respectively. A copy of the Show Cause Order was also sent to the address of the terminated employee but was returned undelivered.

The Secretary opposes the request to reopen, asserting that the operator identifies no exceptional circumstances warranting reopening. The Secretary claims that, following Medina’s sale of the plant, there was inadequate monitoring of MSHA citations, outstanding penalties, and active Commission cases. The Secretary does not explain why service was not attempted on the correct address, which was a part of the record and was known to both MSHA’s Office of Assessments and a MSHA Conference Litigation Representative in Dallas, Texas.²

Medina responded to the Secretary’s opposition, explaining that it did not part with Martin on good terms and never received the Show Cause Orders or Default Decisions. Moreover, Medina asserts that after it sold the portable rock crushing plant and notified MSHA of the sale, it was unreasonable to expect that the plant’s former supervisor, whose employment had been terminated, would forward mail to Medina.

Pursuant to Commission Procedural Rule 66, an order to show cause shall be mailed to the party by registered or certified mail, return receipt requested, before the entry of any order of default or dismissal. 29 C.F.R. § 2700.66. Having reviewed Medina’s request and the Secretary’s response, we conclude that the operator did not receive the Show Cause Orders, and therefore the Default Orders have not been effectively entered. Accordingly, Docket Nos. CENT 2010-1205-M and CENT 2010-1206-M are remanded to the Chief Administrative Law Judge and Administrative Law Judge, respectively, for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

¹ A.C. No. 000228066 was divided into the two docket numbers captioned above. The Motion to Reopen and the enclosed documents referred to both docket numbers. Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate docket numbers CENT 2010-1205-M and CENT 2010-1206-M, both captioned Medina Crushed Stone, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.

² We note that the proposed penalties, motions requesting extension to file the petition for assessment of civil penalty, delinquency notices, and collection notice were sent to Medina’s correct address. It is unclear why there was an abrupt change in service upon the filing of the Secretary’s petition whereby documents were served to different addresses.