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 July 20, 2012, the Commission received from Eagle Creek Mining, LLC (“Eagle Creek”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On December 21, 2011, 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 Eagle Creek’s perceived failure to answer the Secretary’s November 3, 2010 Petition for Assessment of Civil Penalty.

            Eagle Creek asserts that it timely answered the penalty petition on December 2, 2010. Eagle Creek’s counsel submits a copy of the answer date-stamped by the Commission as received on December 7, 2010. Eagle Creek further states that it was unaware that its answer was not docketed until it received a letter from the Department of Treasury on June 12, 2012. The Secretary does not oppose the request to reopen, but notes that she did not receive Eagle Creek’s answer to the penalty petition.

            Having reviewed Eagle Creek’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. 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:

Billy R. Shelton, Esq.

Jones, Walters, Turner & Shelton PLLC

151 N. Eagle Creek Drive, Suite 310

Lexington, KY 40509

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