Or tFEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
December 2, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. TILCON NEW YORK, INC. |
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YORK 2010-9-M A.C. No. 30-00083-196397 |
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 2, 2011, the Commission received from Tilcon New York, Inc. (“Tilcon”) 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 15, 2011, Chief 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 Tilcon’s failure to answer the Secretary’s February 18, 2010 Petition for Assessment of Civil Penalty.
Tilcon asserts that it filed a timely response to the Show Cause Order which included a typographical error in the case docket number. Tilcon further asserts that it reached a settlement with the Secretary regarding this case on July 7, 2011. The Secretary does not oppose the request to reopen.
Having reviewed Tilcon’s request and the Secretary’s response, in the interest of justice, we conclude that Tilcon was not in default under the terms of the Show Cause Order, as it timely complied with the 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, 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:
Sarah T, Brooks, Esq.
Oldcastle Law Group
900 Ashwood Parkway
Suite 700
Atlanta, Ga 30338-4780
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