FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                      

 September 14, 2012

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 18, 2010, the Commission received from San Lorenzo Sand and Gravel Co. (“San Lorenzo”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On January 13, 2010, Chief Administrative Law Judge Lesnick issued an Order to Show Cause in response to San Lorenzo’s failure to answer the Secretary’s October 31, 2008 Petition for Assessment of Civil Penalty. On October 12, 2010, Chief Administrative Law Judge Lesnick issued an Order of Default.

            San Lorenzo asserts that it timely answered the Show Cause Order and timely responded to the Default Order. San Lorenzo submits copies of certified mail receipts showing both answers were received by the Commission. The Secretary does not oppose the request to reopen.

            Having reviewed San Lorenzo’s request and the Secretary’s response, in the interest of justice, we conclude that the Default Order has not become a final order of the Commission because the operator filed a timely response to 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, Chair

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                               

                                                                                     Patrick K. Nakamura, Commissioner

Distribution:

John M. McComas, President

San Lorenzo Sand & Gravel Co.

P.O. Box 1264

San Lorenzo, Puerto Rico 00754

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