FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 13, 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 October 17, 2011, the Commission received from Central State Aggregates, LLC (“Central”) a motion submitted by counsel seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

            On March 17, 2011, Chief Administrative Law 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 Central’s failure to answer the Secretary’s June 16, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive Central’s answer within 30 days, so the order of default became effective on April 18, 2011.

            Central 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 mine’s physical address, instead of its mailing address. The Secretary does not oppose the motion to reopen, but directs Central to contact the MSHA assessment center to adjust its Legal ID address of record.

            Having reviewed Central’s request and the Secretary’s response, in the interest of justice, we hereby vacate the Order of Default and reopen the proceeding. 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. Central 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:

Denise E. Giraudo, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street NW, Suite 1000

Washington, DC 20006

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