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. GLEN ALUM OPERATIONS, LLC

Docket No. WEVA 2011-2202         A.C. No. 46-08812-260211

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 May 2, 2013, the Commission received from Glen Alum Operations, LLC (AGlen Alum@) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On August 13, 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 Glen Alum=s perceived failure to answer the Secretary=s September 1, 2011 Petition for Assessment of Civil Penalty.

Glen Alum asserts that it timely answered the penalty petition and submits a copy of the answer date-stamped by the Commission as received on September 23, 2011. Glen Alum also submits a copy of its email to the Commission on August 16, 2012, in response to the Show Cause Order. The Secretary does not oppose the request to reopen.

Having reviewed Glen Alum=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:

Craig W. Hundley, Esq.

Flaherty, Sensabaugh & Bonasso, PLLC

200 Capitol Street

P.O. Box 3843

Charleston, WV 25338-3843

chundley@minereg.com

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