Robles Aggregates, Inc. (Commission decision, June 26, 2012)

Plain-English summary

Robles Aggregates asked the Commission to reopen a penalty case after an unanswered show-cause order became a default. The operator said it had timely contested the penalties and received no later communication until the Treasury Department contacted it about the debt. The Secretary did not oppose reopening and reported that the regional office file contained nothing showing whether the penalty petition had been delivered. In the interest of justice, the Commission reopened the proceeding, vacated the default, and remanded the case for further proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 et seq.; Commission Procedural Rules
• Outcome: The default order was vacated and the penalty proceeding was remanded to the Chief ALJ.
• Key point: Reopening may be appropriate when the record cannot verify delivery of the penalty petition and the Secretary does not oppose relief.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

June 26, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

ROBLES AGGREGATES, INC.

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Docket No. SE 2010-119-M

A.C. No. 54-00057-199026

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 November 18, 2011, the Commission received from Robles Aggregates, Inc. (“Robles”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 17, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Robles’ failure to answer the Secretary’s March 29, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive Robles’ answer within 30 days, so the default order became effective on April 18, 2011.

Robles asserts that it timely contested the penalties. Robles also states that it had not received any communication until it was contacted by the U.S. Department of Treasury regarding its debt. In order to ensure accurate delivery in the future, Robles modified its address on the legal identity report.

The Secretary does not oppose the request to reopen and notes that the Atlanta Regional Office attorney indicated that there is nothing in the file to verify whether or not the penalty petition was delivered to the operator.

Having reviewed Robles’ request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Order of Default. 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

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

&Patrick K. Nakamura, Commissioner

Distribution:

Juan Raul Robles, President

Robles Aggregates, Inc.

Carr. 14 KM. 9.6

Flamboyan Ave #7

Coto Laurel, PR 00780

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

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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