FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 29, 2012

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 22, 2011, the Commission received from Alvin J. Coleman & Son, Inc. (“Coleman”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

            On March 15, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause and Order of Default in response to Coleman’s failure to answer the Secretary’s January 6, 2010 Petition for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days or it would be in default.

            Coleman asserts that it submitted a timely answer to the Secretary’s Petition for Assessment and did not receive the Order to Show Cause. The Secretary does not oppose the request to reopen and notes that the Philadelphia Regional Solicitor’s Office indicated that the operator’s answer was timely received by the MSHA Warrendale, PA District Office on February 1, 2010. The answer indicates that it was also sent to the Commission.

            Having reviewed Coleman’s request and the Secretary’s response, in the interest of justice, we conclude that the Order of Default should be vacated because Coleman timely filed an answer to the petition. 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:

Judson S. Ludeking

Contractors Risk Mngmt., Inc.

P.O. Box 211

Concord, NH 03302-0211

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

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

Washington, D.C. 20001-2021