Secretary of Labor v. Glen Alum Operations, LLC (Commission decision, November 5, 2013)

Plain-English summary

Glen Alum Operations asked to reopen a penalty proceeding after an apparent failure to answer led to a show-cause order. The operator produced an answer that the Commission had date-stamped shortly after the Secretary filed the penalty petition and an email sent three days after the show-cause order. The Secretary did not oppose reopening. Because Glen Alum timely responded to the show-cause order, the Commission held that the default never effectively became final and remanded the case for further 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: Timely proof of both an answer and a show-cause response prevents an apparent default from becoming final.

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.

GLEN ALUM OPERATIONS, LLC

Docket No. WEVA 2011-2202

A.C. No. 46-08812-260211

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 May 2, 2013, the Commission received from Glen Alum Operations, LLC (“Glen Alum”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On August 13, 2012, 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 Glen Alum’s perceived failure to answer the Secretary’s September 1, 2011 Petition for Assessment of Civil Penalty.

Glen Alum asserts that it timely
answered the penalty petition and submits a copy of the answer date-stamped by the Commission as received on September 23, 2011. Glen Alum also submits a copy of its email to the Commission on August 16, 2012, in response to the Show Cause Order. The Secretary does not oppose the request to reopen.

Having reviewed Glen Alum’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:

Craig W. Hundley, Esq.

Flaherty, Sensabaugh & Bonasso, PLLC

200 Capitol Street

P.O. Box 3843

Charleston, WV 25338-3843

[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