Shenandoah Stone, LLC (Commission decision, April 3, 2013)

Plain-English summary

Shenandoah Stone timely answered a penalty petition and produced a certificate of service and fax confirmation. The later show-cause order was sent to the mine's physical address rather than its mailing address and was returned as insufficient, so the operator did not receive it. Shenandoah contacted the Commission promptly after receiving a delinquency notice, and the Secretary did not oppose reopening. The Commission reopened the case and remanded it for further proceedings.

Decision snapshot

• Governing authority: Mine Act, 30 U.S.C. § 801 et seq.; 29 C.F.R. Part 2700
• Outcome: The default was reopened and the penalty proceeding was remanded.
• Key point: A documented timely answer and nonreceipt of a misaddressed show-cause order justified reopening.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 3, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

SHENANDOAH STONE, LLC 

:

:

:

:

:

:

:

:

:

Docket No. VA 2011-223-M

A.C. No. 44-05172-243390

BEFORE: Jordan, Chairman; Young 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 June 29, 2012, the Commission received from Shenandoah Stone, LLC (“Shenandoah”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On September 30, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Shenandoah’s perceived failure to answer the Secretary’s February 17, 2011 Petition for Assessment of Civil Penalty.

Shenandoah asserts that it timely answered the penalty petition on February 18, 2011. Shenandoah’s counsel submits a certificate of service and a fax confirmation sheet to that effect. Commission records indicate that the Show Cause Order was returned to the sender due to an insufficient address. Shenandoah states that it does not have a record of receiving the Show Cause Order and that the order was sent to the physical mine address rather than its mailing address. Shenandoah further states that it received a delinquency notice on June 15, 2012, and promptly contacted the Commission. The Secretary does not oppose the request to reopen, and notes that she received Shenandoah’s answer to the assessment petition.

Having reviewed Shenandoah’s request and the Secretary’s response, we conclude that this case should be reopened because the operator filed a timely response to the penalty petition and did not receive the Show Cause 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

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

[email protected]

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

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710