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 26, 2012, the Commission received from Cumberland Quarry Corp. (“Cumberland”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

            On August 30, 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 Cumberland’s perceived failure to answer the Secretary of Labor’s June 1, 2011 Petition for Assessment of Civil Penalty.

            Cumberland asserts that it timely answered the penalty petition on June 20, 2011, but the answer was only sent to the Department of Labor’s Mine Safety and Health Administration (“MSHA”) and not the Commission. Cumberland’s consultant discovered the delinquency on MSHA’s Data Retrieval System, and immediately contacted MSHA on July 13, 2012. Cumberland further states that it did not receive the Show Cause Order. The record indicates that the Show Cause Order was returned to sender due to having no mail receptacle. The Secretary does not oppose the request to reopen, and notes that she received Cumberland’s answer to the penalty petition. The Secretary also notes that a delinquency notice was mailed to the operator’s address of record on June 15, 2012, but was returned undelivered due to having no mail receptacle. The Secretary urges the operator to ensure that its address of record is accurate and future mailings can be received at that address.

            Having reviewed Cumberland’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:

John Zahner

consultant employed by/

Cumberland Quarry Corp.

8 Hillcrest Road

Foxboro, MA 02035

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