Secretary of Labor v. Carroll County Stone, Inc. (Commission decision, March 28, 2017)

Plain-English summary

Carroll County Stone appeared to have missed the deadline to answer a show-cause order, which then became a default order. The operator said it had mailed its answer in the same envelope as a response for a sister company's case and that the Commission mixed up the two matters. Commission records confirmed that both responses arrived before the deadline. The Commission held that Carroll County was never in default, so the default order was a nullity and reopening was moot. It remanded the penalty case for further proceedings.

Decision snapshot

• Cited authority: Commission precedent on timely responses to show-cause orders
• Outcome: The default order was declared a nullity and the case was remanded for further proceedings.
• Key point: A timely answer prevents default even when administrative handling causes it to appear in a related company's case.

Full text (FMSHRC public release)

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.

CARROLL
COUNTY STONE, INC.

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Docket
No. CENT 2015-475-M

A.C.
No. 03-01232-379841

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 October 30, 2015, the Commission received from Carroll County Stone, Inc. (“Carroll County”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
August 4, 2015, the Chief Administrative Law Judge issued an Order to Show Cause in response to Carroll County’s perceived failure to answer the Secretary of Labor’s June 29, 2015 Petition for Assessment of Civil Penalty.  By its terms, the Order to Show Cause was deemed a Default Order on September 4, 2015, when it appeared that the operator had not filed an answer within 30 days. MSHA mailed a delinquency notice to the operator on October 21, 2015.

Carroll
County asserts that it timely filed its answer to the Order to Show Cause in the same envelope as another case involving a sister company, Bailey Quarries, Inc., and that the two cases were mixed up by the Commission.  Commission records confirm that it received responses for both cases, CENT 2015-363-M and CENT 2015-475-M on August 28, 2015.  The Secretary does not oppose the request to reopen.

Having reviewed Carroll County’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 because 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:

Michael
J. Boardman

Carroll
County Stone, Inc.

911
U.S. Highway 60

Republic,
MO 65738

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