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. VULCAN CONSTRUCTION MATERIALS, LP |
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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 May 19, 2011, the Commission received from Vulcan Construction Materials, LP (“Vulcan”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.
On February 2, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of Default in response to Vulcan’s failure to answer the Secretary’s September 30, 2009 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.
Vulcan asserts it filed a timely response to the Show Cause Order and has provided copies of the FedEx tracking document, indicating it was received and signed for by the Commission. The Secretary does not oppose the request to reopen.
Having reviewed Vulcan’s request and the Secretary’s response, in the interest of justice, we conclude that Vulcan 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, Chairman
/s/____________________________________
Michael F. Duffy, Commissioner
/s/____________________________________
Michael G. Young, Commissioner
/s/____________________________________
Robert F. Cohen, Jr., Commissioner
/s/____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
Steven T. Perkins
Safety and Health Representative
MidSouth Division
Vulcan Construction Materials, LP
1410 Donelson Pike - Airpark II, STE. B-19
Nashville, TN 37217
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