FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
MUNSEN PAVING, LLC |
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Docket No. WEST 2016-215-M A.C. No. 35-003312-398548
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BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, 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) (“Mine Act”). On September 7, 2016, the Commission received from Munsen Paving, LLC (“Munsen”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.
On March 8, 2016, the Chief Administrative Law Judge issued an Order to Show Cause in response to Munsen’s failure to answer the Secretary of Labor’s January 14, 2016 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on April 8, 2016, when it appeared that the operator had not filed an answer within 30 days.
Munsen asserts that, on April 7, 2016, it timely filed an answer to the Order to Show Cause via certified mail. It offers a return receipt to prove that the answer was post-marked on April 7, 2016. Munsen further demonstrates that it received the return receipt with April 13, 2016 stamped on the front of the card. The Secretary does not oppose the request to reopen.
Having reviewed Munsen’s request and the Secretary’s response, we conclude that the operator was not in default under the terms of the Order to Show Cause as it timely complied with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and this case is remanded 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.
/s/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner
Distribution:
Gwendolyn K. Nightengale, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, DC 20006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450