Adelman Sand & Gravel, Inc. (Commission decision, January 24, 2012)

Plain-English summary

Adelman Sand & Gravel did not initially answer the Secretary's penalty petition, so the Chief Judge issued a show-cause order that would become a default after 30 days. Adelman produced a certified-mail receipt showing that the Commission's Docket Office received its answer within that period. The Secretary did not oppose reopening, although MSHA had no record of receiving a copy. The Commission held that Adelman was not in default because it timely complied with the show-cause order and remanded the penalty case for further proceedings.

Decision snapshot

• Governing authority: Federal Mine Safety and Health Act of 1977
• Outcome: The Commission found no default and remanded the penalty case to the Chief Administrative Law Judge.
• Key point: A timely answer to a show-cause order prevents the conditional order from becoming a default.

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

January 24, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

ADELMAN SAND & GRAVEL, INC. 

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Docket No. YORK 2010-228-M

A.C. No. 06-00274-215780

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 August 9, 2011, the Commission received from Adelman Sand & Gravel, Inc. (“Adelman”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 16, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Adelman’s failure to answer the Secretary’s June 7, 2010 Petition for Assessment of Civil Penalty.

Adelman asserts that it filed a timely response to the Show Cause Order, and provides a certified mail receipt signed by the Docket Office on March 30, 2011. The Secretary does not oppose the request to reopen, but notes that there is no record that MSHA received a copy of the answer.

Having reviewed Adelman’s request and the Secretary’s response, in the interest of justice, we conclude that Adelman was not in default under the terms of the Show Cause Order, as it timely complied with the 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 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:

Seymour Adelman

Adelman Sand & Gravel, Inc.

34 Bozrah St.

Bozrah, CT 06334

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

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

Washington, D.C. 20001-2021