Kvaerner Industrial (Commission decision, April 4, 2013)

Plain-English summary

Kvaerner Industrial Construction faced default after failing to answer a penalty petition. The operator responded to two identical show-cause orders on time, and the Commission's record confirmed receipt four days later. The Secretary did not oppose reopening and confirmed that MSHA also received the response. 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 defaults were reopened and the penalty proceeding was remanded.
• Key point: A timely response already received by the Commission prevented the show-cause orders from supporting default.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE
520N

WASHINGTON, D.C. 20004-1710

April 4, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA)

v.

KVAERNER INDUSTRIAL
CONSTRUCTION, INC.
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Docket No. WEST
2012-347-M
A.C. No. 02-00024-272861 1PL

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 December 6, 2012, the Commission received from Kvaerner Industrial Construction, Inc. (“Kvaerner”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default orders entered against it.

On
August 20 and 23, 2012, Chief Administrative Law Judge Lesnick issued two identical Orders to Show Cause, addressed to Kvaerner and its counsel, which by their terms became Default Orders if the operator did not file an answer within 30 days. These Orders to Show Cause were issued in response to Kvaerner’s failure to answer the Secretary’s January 23, 2012 Petition for Assessment of Civil Penalty.

Kvaerner
asserts that it timely answered the Show Cause Orders on August 31, 2012. The record indicates that the Commission received Kvaerner’s response on September 4, 2012. The Secretary of Labor does not oppose the request to reopen, and notes that MSHA received Kvaerner’s response to the Show Cause Orders.

Having
reviewed Kvaerner’s request and the Secretary’s response, we conclude that these cases should be reopened because the operator filed a timely response to the Show Cause Orders. 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, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Darren S. Harrington

Key Harrington Barnes, PC

3710 Rawlins, Suite 950

Dallas, TX 75219

[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