FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

November 5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

 

                   v.

PIERCE SAND

 

 

             Docket No. CENT 2012-128-M

             A.C. No. 23-02347-262760

 

 

 

 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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) (AMine Act@). On March 21, 2013, the Commission received from Pierce Sand a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

 

On August 1, 2012, the Chief Administrative Law Judge 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 Pierce Sand=s failure to answer the Secretary of Labor=s November 18, 2011 Petition for Assessment of Civil Penalty.

 

Pierce Sand asserts that it timely answered the Show Cause Order and submits a copy of the answer date-stamped by the Commission as received on August 27, 2012. Pierce Sand states that the answer was mistakenly only applied to a companion case, Docket No. CENT 2012-129-M. The Secretary does not oppose the request to reopen, and agrees with the operator=s contentions.

 

 

Having reviewed Pierce Sand=s request and the Secretary=s response, we conclude that the Default Order did not effectively become a final order of the Commission because the operator filed a timely response to 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, Chairman

 

 

 

/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

           

                                                                                                                                                           

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

 

 

 

                                                                                                                                                           


 

Distribution:

 

Bob L. Pierce

Pierce Sand Gilford

220 South Oak

Stanberry, MO 64489

 

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., 25th 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