Secretary of Labor v. Essroc San Juan (Commission decision, June 27, 2016)

Plain-English summary

A penalty assessment against Essroc San Juan had become a final Commission order after it was not timely contested. Essroc moved to reopen the assessment, and the Secretary did not oppose the request. The Commission granted reopening and remanded the case to the Chief Administrative Law Judge for further proceedings. It ordered the Secretary to file a penalty petition within 45 days and stated that granting this motion was not precedent for other reopening requests.

Decision snapshot

• Governing provision: 29 C.F.R. § 2700.28
• Outcome: The final penalty assessment was reopened and remanded, with the Secretary ordered to file a penalty petition within 45 days.
• Key point: The Commission expressly limited the order to this unopposed motion and said it was not precedential for other cases.

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.

ESSROC
SAN JUAN

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:

:

:

:

:

Docket
No. SE 2016-23-M

A.C.
No. 54-00120-388990

BEFORE:  Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, 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The granting of this motion is not
precedential for the consideration of any other motion before the Commission.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/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/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

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Robert
Huston Beatty, Jr.

Lorna
Waddell

Dinsmore
& Shohl LLP

215
Don Knotts Blvdd., Suite 310

Morgantown,
WV 26501

Jason
M. Nutzman

Dinsmore
& Shohl LLP

900
Lee Street, Suite 600

Charleston,
WV 25301

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 401

Arlington,
VA 22202-5450