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

 

 

 

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