FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
September 26, 2011
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. INDUSTRIAL MINERALS, INC. |
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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 February 24, 2011, the Commission received from Industrial Minerals, Inc. (“Industrial”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.
On August 3, 2010, Chief Judge Lesnick issued an Order to Show Cause in response to Industrial’s request for a hearing and failure to answer the Secretary’s May 30, 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.
Industrial asserts it filed a timely response to the Show Cause Order and provides a certified mail receipt signed by the Commission’s Docket Office on August 23, 2010. Moreover, Industrial states it also responded to the Default Order and provides another certified mail receipt signed for by the Docket Office on December 9, 2010. The Secretary does not oppose the request to reopen.
Having reviewed Industrial’s request and the Secretary’s response, in the interest of justice, we conclude that Industrial was not in default under the terms of the Show Cause Order, as it timely complied with the Order. Hence, the Order of Default was issued in error. 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, Chairman
/s/____________________________________
Michael F. Duffy, Commissioner
/s/____________________________________
Michael G. Young, Commissioner
/s/____________________________________
Robert F. Cohen, Jr., Commissioner
/s/____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
Lewis G. Wilson
Industrial Minerals, Inc.
141 Mineral Drive
Blacksburg, SC 29702
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