Windham Materials, LLC (Commission decision, December 19, 2011)

Plain-English summary

Windham Materials failed to answer a penalty petition and show-cause order, leading the Chief Judge to enter a default. Windham said the petition and show-cause order were sent to the wrong mailing address rather than the address on its Legal ID Report, and that it learned of the matter only after contact from the Treasury Department. The Secretary did not oppose relief. The Commission held that the default had not become final because Windham never received the show-cause order, remanded the case, and gave Windham 30 days to answer.

Decision snapshot

• Governing law: Federal Mine Safety and Health Act of 1977
• Outcome: The default was held nonfinal and the penalty case was remanded, with an answer due within 30 days.
• Key point: A default based on a show-cause order the operator never received did not become a final Commission order.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 19, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

WINDHAM MATERIALS, LLC

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Docket No. YORK 2008-186-M
A.C. No. 06-00400-146591

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 24, 2011, the Commission received from Windham Materials, LLC (“Windham”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On October 23, 2009, Chief Judge Lesnick issued an Order to Show Cause in response to Windham’s request for a hearing and failure to answer the Secretary’s June 16, 2008 Petition for Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it would be in default. On December 2, 2010, Judge Lesnick issued an Order of Default for failing to comply with his Show Cause Order.

Windham asserts that it did not receive the Order to Show Cause or the Secretary’s previously filed Petition for Assessment of Civil Penalty because they were sent to the wrong mailing address, instead of its address of record on its Legal ID Report. Windham further states that it did not receive any correspondence before it was contacted by the U.S. Department of Treasury on June 6, 2011. The Secretary does not oppose the motion to reopen.

Having reviewed Windham’s request and the Secretary’s response, in the interest of justice, we conclude that the Order of Default has not become a final order of the Commission because the Order to Show Cause was never received by Windham. 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. Windham shall file an Answer to the Show Cause Order within 30 days of the date of this order.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/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

Distribution:

Harold Hopkins, Director of Operations

Windham Materials, LLC

360 Plains Rd., P.O. Box 346

Willimantic, CT 06226

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

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021