Higman Sand & Gravel, Inc.

Plain-English summary

This civil penalty proceeding involved Higman Sand & Gravel's failure to answer a complaint proposing a $362 penalty for an alleged violation involving an audible warning device at a surface metal and nonmetal mine. An administrative law judge entered a default order after Higman did not answer the complaint or comply with a show-cause order. Higman later wrote to the Commission and said it believed it had done what was necessary to obtain a hearing, while a response had apparently been sent to MSHA instead. The Commission vacated the default order and remanded the case so the judge could decide whether relief from default was warranted.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14132(a), the mandatory audible warning device standard for surface metal and nonmetal mines.
• Outcome: The Commission vacated the default order and remanded the case for further proceedings.
• Key point: A possible confusion between MSHA and the Commission, together with an asserted attempt to respond, warranted an opportunity for the operator to present its position to the judge.

Full text (FMSHRC public release)

                              May 25, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 93-18-M
:
HIGMAN SAND & GRAVEL, INC. :

BEFORE: Holen, Chairman; Backley, and Doyle, Commissioners

                                  ORDER

BY: Holen, Chairman; Backley, and Doyle, Commissioners

  This civil penalty proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). Commission
Chief Administrative Law Judge Paul Merlin issued an Order of Default on April
22, 1993, finding respondent Higman Sand & Gravel, Inc. ("Higman") in default
for failure to answer the civil penalty proposal of the Secretary of Labor
("Secretary") and the judge's February 24, 1993, Order to Show Cause. The
judge assessed the civil penalty of $362 proposed by the Secretary. For the
reasons that follow, we vacate the default order and remand this case for
further proceedings.

  On April 30, 1993, Higman filed a letter with the Commission, which

stated, in essence, that Higman believed it had done everything necessary to
obtain a hearing. A letter dated March 19, 1993 was attached, which Higman
alleges it mailed to the Department of Labor's Mine Safety and Health
Administration ("MSHA") Civil Penalty Compliance Office in Arlington,
Virginia.

  The judge's jurisdiction in this proceeding terminated when his decision

was issued on April 22, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and
the Commission's procedural rules, relief from a judge's decision may be
sought by filing a petition for discretionary review with the Commission
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We will treat Higman's letter as a timely filed petition for
discretionary review of the decision. See, e.g., Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).

  On July 15, 1992, an MSHA inspector issued to Higman a citation pursuant

to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of
30 C.F.R. § 56.14132(a), a mandatory audible warning device standard for
surface metal and nonmetal mines. On October 6, 1992, MSHA's Office of
Assessments, under the regular assessment procedures of 30 C.F.R. § 100.3,
notified Higman that it proposed a civil penalty of $362 for the alleged
violation. On October 21, 1992, Higman filed its "Blue Card" request for a
hearing before this independent Commission. On December 18, 1992, the
Secretary filed a complaint proposing the assessment of a civil penalty for
the violation. Under the Commission's rules of procedure, the party against
whom a penalty is sought was obligated to file its answer with the Commission
within 30 days after service of the penalty proposal. 29 C.F.R. § 2700.5(b) &
.29. The record indicates that Higman did not file an answer to the complaint
with the Commission. When no answer to the penalty proposal was filed, the
judge, on February 24, 1993, issued an order directing Higman to file an
answer within 30 days or to show good cause for its failure to do so.

   It appears that Higman, proceeding without benefit of counsel, may have

confused the roles of the Commission and MSHA in this adjudicatory proceeding
and may have attempted to respond to the judge's show cause order by sending
its response to MSHA. We are unable, on the basis of the present record, to
evaluate the merits of Higman's position. Because Higman has asserted an
attempt to respond, we will, in the interest of justice, permit Higman the
opportunity to present its position to the judge, who shall determine whether
relief from default is warranted. Therefore, we vacate the default order.
Higman is reminded that it must file all documents and correspondence with the
Commission, and serve the Secretary with copies of all of such filings. 29
C.F.R. § 2700.5(b) & .7.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner