FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
December 19, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. WINDHAM MATERIALS, LLC |
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Docket No. YORK 2008-186-M A.C. No. 06-00400-146591 |
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 June 24, 2011, the Commission received from Windham Materials, LLC (“Windham”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.
On October 23, 2009, Chief Judge Lesnick issued an Order to Show Cause in response to Windham’s request for a hearing and failure to answer the Secretary’s June 16, 2008 Petition for Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it would be in default. On December 2, 2010, Judge Lesnick issued an Order of Default for failing to comply with his Show Cause Order.
Windham 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, instead of its address of record on its Legal ID Report. Windham further states
that it did not receive any correspondence before it was contacted by the U.S. Department of
Treasury on June 6, 2011. The Secretary does not oppose the motion to reopen.
Having reviewed Windham’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 Windham. 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. Windham 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:
Harold Hopkins, Director of Operations
Windham Materials, LLC
360 Plains Rd., P.O. Box 346
Willimantic, CT 06226
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
US Department of Labor
1100 Wilson Blvd. 25th Floor
Arlington, VA 22209
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