Secretary of Labor v. Revelation Energy, LLC (Commission decision, March 14, 2018)

Plain-English summary

Revelation Energy asked the Commission to reopen a default order entered after the operator appeared not to answer the Secretary's civil-penalty petition. Revelation showed that it had mailed a timely answer and notice of contest but mistakenly wrote docket number KENT 2016-0331 instead of KENT 2016-0311. The Secretary did not oppose reopening. The Commission held that Revelation was never in default because its response to the penalty petition was timely, making both the show-cause order and default order nullities. It treated the reopening motion as moot and remanded the case for further proceedings.

Decision snapshot

• Cited authority: The Mine Act and Commission procedural rules in 29 C.F.R. Part 2700
• Outcome: The default and show-cause orders were declared nullities, the reopening motion was moot, and the case was remanded.
• Key point: A timely answer filed with a clerical docket-number error prevented default when the filing clearly responded to the penalty petition.

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.

REVELATION
ENERGY, LLC

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:

:

:

:

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Docket
No. KENT 2016-311

A.C.
No. 15-19737-405260

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 20, 2016, the Commission received from Revelation Energy, LLC (“Revelation”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

On
July 5, 2016, the Chief Administrative Law Judge issued an Order to Show Cause in response to Revelation’s perceived failure to answer the Secretary of Labor’s May 18, 2016 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order on August 5, 2016, when it appeared that the operator had not filed an answer within 31 days.

Revelation asserts that it mailed its
Answer and Notice of Contest on June 16, 2016, but due to a clerical error included the docket number “KENT 2016-0331” instead of “KENT 2016-0311.” The Secretary does not oppose the request to reopen.

Having reviewed Revelation’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 filed a timely response to the penalty petition. See Eagle Creek Mining, LLC , 35 FMSHRC 781, 782 (Apr. 2013). This renders the Order to Show Cause and 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:

Joseph
G. Jacobs

Consultant

Revelation
Energy, LLC

P.O.
Box 249

Stanville,
KY 41659

Ali
Beydoun, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South, Suite 401

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