FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 8, 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 November 7, 2012, the Commission received from Digger McCray Excavating, LLC (“Digger”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On July 6, 2010, Chief Administrative Law Judge Lesnick issued an Order to Show Cause in response to Digger’s perceived failure to answer the Secretary’s July 27, 2009 Petition for Assessment of Civil Penalty. The order directed the operator to file an answer within 30 days. The Commission did not receive Digger’s answer within 30 days, so an Order of Default was issued on February 2, 2011.

            Digger asserts that the Show Cause Order was mailed to an old address, which has been inaccurate since 2007. Digger further states that it discovered the delinquency after it was contacted by a debt collection agency from the Department of Treasury. The Secretary does not oppose the request to reopen. The Secretary states that MSHA received a timely answer to the penalty petition dated August 25, 2009. The Secretary notes that it appears that a change of address was made with MSHA at some time, but the address was not changed on the Contractor ID Report. The Secretary urges the contractor to contact MSHA and update its address of record.

            Having reviewed Digger’s request and the Secretary’s response, we conclude that this case should be reopened because the operator had served a timely answer on the Secretary and apparently 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 Ruels, 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:

J. Randall McCray

Digger McCray Excavating, LLC

269 W. Main St.

Ashville, OH 43103

diggermccray@yahoo.com

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., 25^th 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