Secretary of Labor v. NorthAmerican Industrial Services, Inc. (Commission decision, November 5, 2013)

Plain-English summary

NorthAmerican Industrial Services asked to reopen a penalty proceeding that appeared to have defaulted after it allegedly failed to answer the Secretary's petition. The operator produced its timely answer to MSHA and showed that it had responded by email two days after the Chief Judge issued a show-cause order. The Secretary did not oppose reopening and confirmed receiving the answer. The Commission held that the default order never effectively became final because NorthAmerican timely responded to the show-cause order, and it remanded the case for ordinary proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 801 et seq.; Commission Procedural Rules
• Outcome: The purported default was held ineffective, and the penalty case was remanded to the Chief Administrative Law Judge.
• Key point: A show-cause order cannot mature into a default when the operator files a timely response.

Full text (FMSHRC public release)

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FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

November
5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

NORTHAMERICAN INDUSTRIAL

SERVICES, INC.

Docket No. WEST 2012-1177-M

A.C. No. 26-00500-293069 1WA

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. (2006) (“Mine Act”). On June 27, 2013, the Commission received from NorthAmerican Industrial Services, Inc. (“NorthAmerican”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On February 5, 2013, the Chief
Administrative Law Judge 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 NorthAmerican’s perceived failure to answer the Secretary’s August 22, 2012 Petition for Assessment of Civil Penalty.

NorthAmerican
asserts that it timely answered the penalty petition and encloses a copy mailed to MSHA on September 20, 2012. NorthAmerican further states that it responded to the Show Cause Order by email to the Commission’s Docket office on February 7, 2013. The Secretary does not oppose the request to reopen, and notes that MSHA received NorthAmerican’s answer to the penalty petition.

Having reviewed NorthAmerican’s request and the Secretary’s response, we conclude that the Default Order did not effectively become a final order of the Commission because the operator filed a timely response to 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/ 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:

Bill Youngs

Director of Compliance

North American Industrial Services

3350 W. Directors Row Suite 600

Salt Lake, UT 84104

[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