FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
March 2, 2012
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
SKYLINE DREDGING AND EXCAVATING, INC. |
: : : : : : : : : |
Docket No. WEST 2010-1412-M A.C. No. 24-02140-220439 Q031 |
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 September 13, 2011, the Commission received from Skyline Dredging and Excavating, Inc. (“Skyline”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.
On March 18, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of Default in response to Skyline’s failure to answer the Secretary’s August 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. The Commission did not receive Skyline’s answer within 30 days, so the order of default became effective on April 18, 2011.
Skyline 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. The Secretary does not oppose the motion to reopen, but notes that Skyline changed its address of record on April 6, 2011, after the petition and order were sent to the previous address.
Having reviewed Skyline’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 Skyline. 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. Skyline 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:
Rhonda Hoon
Skyline Dredging & Excavating Inc.
P.O. Box 1849
Columbia Falls, MT 59912
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