FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 4, 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 August 22, 2012, the Commission received from D.A.S. Sand & Gravel (“DAS”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On January 5, 2012, 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 DAS’s perceived failure to answer the Secretary’s January 6, 2011 Petition for Assessment of Civil Penalty.

            DAS asserts that it never received the Show Cause Order because its owner was out of town in January 2012 and the post office returned the letter as undeliverable. DAS further states that it contacted MSHA after receiving a delinquency notice dated June 14, 2012, but received no response. DAS contacted the Commission after receiving a letter from the Department of Treasury, dated August 8, 2012. The Secretary of Labor does not oppose the request to reopen, and states that the Northeast District MSHA office received the operator’s timely answer to the penalty petition on February 4, 2011.

            Having reviewed DAS’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.

/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:

Mr. David Scheer

D. A. S. Sand & Gravel

1444 Hydesville, Rd.

Newark, NY 14513

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