Vulcan Construction Materials, LP (Commission decision, September 26, 2011)

Plain-English summary

Vulcan Construction Materials sought to reopen a civil-penalty case after an ALJ entered default for failure to answer the Secretary's penalty petition. Vulcan showed that it had timely responded to the ALJ's show-cause order and supplied FedEx tracking information confirming delivery to the Commission. The Secretary did not oppose reopening. The Commission concluded that Vulcan was not in default, granted relief, and remanded the case for further proceedings.

Decision snapshot

• Cited standard: None
• Outcome: The default was set aside and the case was remanded for further proceedings.
• Key point: Proof that the Commission timely received a response to a show-cause order defeats a default based on supposed nonresponse.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

VULCAN CONSTRUCTION MATERIALS, LP

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Docket No. SE 2009-845-M

A.C. No. 40-00020-193999

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Vulcan Construction Materials, LP (“Vulcan”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On February 2, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of Default in response to Vulcan’s failure to answer the Secretary’s September 30, 2009 Petition for Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it would be in default.

Vulcan asserts it filed a timely response to the Show Cause Order and has provided copies of the FedEx tracking document, indicating it was received and signed for by the Commission. The Secretary does not oppose the request to reopen.

Having reviewed Vulcan’s request and the Secretary’s response, in the interest of justice, we conclude that Vulcan was not in default under the terms of the Show Cause Order, as it timely complied with the Order. Accordingly, 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/______

Mary Lu Jordan, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

Steven T. Perkins

Safety and Health Representative

MidSouth Division

Vulcan Construction Materials, LP

1410 Donelson Pike - Airpark II, STE. B-19

Nashville, TN 37217

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021