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.

 

KENTUCKY FUEL CORPORATION

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Docket No.  KENT 2013-1050

A.C. No. 15-18363-329924

 

 

           

        

 

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 July 14, 2015, the Commission received from Kentucky Fuel Corporation (“Kentucky Fuel”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it. 

 

            On January 23, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in response to Kentucky Fuel’s failure to answer the Secretary of Labor’s October 22, 2013, Petition for Assessment of Civil Penalty.  By its terms, the Order to Show Cause was deemed a Default Order on February 24, 2014, when it appeared that the operator had not filed an answer with the Judge within 30 days.

 

            Kentucky Fuels claims that it never received the initial Petition for Assessment of Civil Penalty.  Moreover, it claims that it received the Order to Show Cause on January 27, 2014, and promptly filed a response on February 6, 2014.  This Response was received by the Commission on February 11, 2014.  However, while the Response listed the correct Assessment Control Number, it showed the docket number as “WEVA 2013-1050” rather than “KENT 2013-1050.” 

 

            The evidence shows that the operator intended its February 6, 2014, letter to serve as a response to the Order to Show Cause in KENT 2013-1050, but it mistakenly wrote “WEVA” instead of “KENT.”  The Commission received Kentucky Fuel’s letter on February 11, 2014, prior to the February 24, 2014, deadline for responding to the Order to Show Cause.  Therefore, we conclude that the operator was not in default under the terms of the Order to Show Cause because it timely complied with the Order.  See Vulcan Constr. Materials, 33 FMSHRC 2164 (Sept. 2011).  This renders the Default Order a nullity.  Accordingly, KENT 2013-1050 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:

James F. Bowman

P.O. Box 99

Midway, WV 25878

 

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