FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 3, 2013

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 June 29, 2012, the Commission received from Shenandoah Stone, LLC (“Shenandoah”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On September 30, 2011, Chief Administrative Law Judge Lesnick 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 Shenandoah’s perceived failure to answer the Secretary’s February 17, 2011 Petition for Assessment of Civil Penalty.

            Shenandoah asserts that it timely answered the penalty petition on February 18, 2011. Shenandoah’s counsel submits a certificate of service and a fax confirmation sheet to that effect. Commission records indicate that the Show Cause Order was returned to the sender due to an insufficient address. Shenandoah states that it does not have a record of receiving the Show Cause Order and that the order was sent to the physical mine address rather than its mailing address. Shenandoah further states that it received a delinquency notice on June 15, 2012, and promptly contacted the Commission. The Secretary does not oppose the request to reopen, and notes that she received Shenandoah’s answer to the assessment petition.

            Having reviewed Shenandoah’s request and the Secretary’s response, we conclude that this case should be reopened because the operator filed a timely response to the penalty petition and did not receive 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.