Secretary of Labor v. Ember Energy, LLC (Commission decision, August 17, 2017)

Plain-English summary

Ember Energy asked the Commission to reopen a penalty assessment that had become a final Commission order after the contest deadline passed. The Secretary did not oppose the motion. The Commission's short order does not identify the operator's grounds or make factual findings about the missed deadline. It reopened the assessment, remanded for ordinary penalty proceedings, directed the Secretary to file a penalty petition within 45 days, and stated that the ruling was not precedent for other reopening motions.

Decision snapshot

• Cited authority: Section 105(a) of the Mine Act; 29 C.F.R. § 2700.28
• Outcome: The final assessment was reopened and remanded to the Chief Administrative Law Judge for penalty proceedings.
• Key point: This unopposed reopening was expressly nonprecedential, and the order did not disclose the factual basis for relief.

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.

EMBER
ENERGY, LLC

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Docket
No. KENT 2017-67

A.C.
No. 15-19459-412128

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”).  The Commission has received a motion from the operator seeking to reopen a penalty assessment which had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a).  The Secretary states that he does not oppose the motion.

Having reviewed movant’s unopposed
motion to reopen, we reopen this matter and remand it 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.  Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.  See 29 C.F.R. § 2700.28.

The granting of this motion is not
precedential for the consideration of any other motion before the Commission. 

/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

Revelation
Energy, LLC

P.O.
Box 249

Stanville,
KY 41659

John
Collins

P.O.
Box 249

Stanville,
KY 41659

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