Secretary of Labor v. Original Fuels, Inc. (Commission decision, July 10, 2017)

Plain-English summary

Original Fuels timely contested a proposed penalty but did not answer the Secretary's later penalty petition. The Chief Administrative Law Judge issued an order requiring a response by August 10, 2015, and the operator filed a letter on August 4 explaining why it contested the penalties and stating that it had copied the Secretary. MSHA nevertheless treated the matter as a default and later sent a delinquency notice. The Commission held that the timely August 4 response complied with the show-cause order, so the alleged default was a nullity and reopening was unnecessary. It remanded the case for the underlying penalty proceeding to continue.

Decision snapshot

• Cited standard: None identified in this procedural order.
• Outcome: The reopening motion was declared moot, the alleged default was treated as void, and the penalty case was remanded.
• Key point: A timely substantive response to a show-cause order prevents the order from converting into a default.

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.

ORIGINAL
FUELS, INC. 

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Docket
No. PENN 2015-185-M

A.C.
No. 36-09386-376805   

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 9, 2015, the Commission received from Original Fuels, Inc. (“Original Fuels”) a motion seeking to reopen a penalty assessment proceeding and seeking relief from the Default Order entered against it.

On
March 23, 2015, the proposed assessment was delivered to the operator.  On March 25, 2015, the operator timely contested the assessment.  On April 6, 2015, a Petition for Assessment of Civil Penalty was mailed to the operator’s physical address.  The operator did not respond.

On July 10, 2015, the Chief
Administrative Law Judge issued an Order to Show Cause in response to Original Fuels’ failure to answer the Secretary’s Petition.  The Order to Show Cause stated that it would become a default order on August 10, 2015, if the operator failed to file an answer to the petition before that date.

The Commission’s records show that the
operator timely filed a response to the show cause order on August 4, 2015. The operator’s response to the show cause order clearly sets forth its reasons for contesting the relevant penalties.  In its August 4 response to the Commission, the operator further represents that it sent a copy of the letter to the Secretary .  See Aug. 4, 2015 Letter.

The Secretary opposes the motion to
reopen, asserting that the operator failed to timely respond to the petition.  In his Opposition to Request to Reopen Penalty Assessment, the Secretary acknowledges the operator’s August 4 response to the show cause order.  Sec’y Opp. at 5.  Despite this, MSHA proceeded as though the show cause order had become a default order on August 10, 2015, and mailed a delinquency notification to Original Fuels on September 29, 2015.  The Secretary does not address the substance of the August 4 letter or its effective response to the Judge’s Order to Show Cause.

Having reviewed Original Fuels’ 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).  The alleged default is 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:

David
Osikowicz

President

Original
Fuels Inc.

P.O.
Box 343

Punxsutawney,
PA 15767-0343

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