Secretary of Labor v. Nelson Quarries, Inc.

Plain-English summary

Nelson Quarries sought relief from a default entered after it appeared not to answer the Secretary's penalty petition. The operator said it never received the petition, and the Secretary confirmed that both the petition and the Commission's show-cause order were sent to an incorrect email address. The Commission held that no final order existed because the documents went to the wrong address, making the reopening request moot. It returned the matter to the Chief Administrative Law Judge and directed the Secretary to refile the penalty petition.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.28
• Outcome: The reopening motion was declared moot, and the case was returned for further proceedings.
• Key point: A default did not become final when the petition and show-cause order were sent to the wrong email address.

Full text (FMSHRC public release)

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) :

:

v. : Docket No. CENT 2023-0185

: A.C. No. 14-01478-574480

NELSON QUARRIES, INC. :

BEFORE: Jordan, Chair; Baker and Marvit, 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. (2018) (“Mine Act”). On January 3, 2024, the Commission received from Nelson Quarries, Inc. (“Nelson”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On August 22, 2023, the Chief Administrative Law Judge issued an Order to Show Cause and Order of Default in response to Nelson’s alleged failure to answer the Secretary of Labor’s June 22, 2023 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on September 21, 2023, when it appeared that the operator had not filed an answer within 30 days.

In its motion to reopen, the operator asserts that it never received the Secretary’s petition for assessment of civil penalties. The Secretary does not oppose the operator’s request to reopen. The Secretary notes that the petition for assessment of civil penalties and the Commission’s Order to Show Cause were both sent to an incorrect email address.[1]

Because the Secretary’s petition and the Commission’s orders were sent to an incorrect address there is no final order. The operator’s motion to reopen is moot.

This matter is returned 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. Accordingly, consistent with Rule 28, the Secretary shall re-file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Kenneth L Nelson, President

Nelson, Quarries

P.O. Box 100

Gas, KS 66742

Paul Nelson, Representative

Nelson Quarries, Inc.

206 Knott Street

Jasper, MO 64755

[email protected]

Patrick Clift, Vice President

Nelson Quarries, Inc.

P.O. Box 100

Gas, KS 66742

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Emily Toler Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401 Arlington, VA 22202 [email protected]

Chief Administrative Law Judge Glynn F. Voisin Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520N Washington, DC 20004-1710 [email protected]

[1] The documents were sent to [email protected] when they should have been sent to [email protected].