Diamond Creek Mill, Inc. (Commission decision, April 8, 2013)

Plain-English summary

Diamond Creek Mill defaulted after failing to answer a penalty petition and then failing to respond to a show-cause order. The operator said it never received the show-cause order because the envelope carried an incorrect ZIP code, and the Secretary did not oppose reopening. The Commission reopened the case and remanded it for further proceedings.

Decision snapshot

• Governing authority: Mine Act, 30 U.S.C. § 801 et seq.; 29 C.F.R. Part 2700
• Outcome: The default was reopened and the penalty case was remanded.
• Key point: Nonreceipt of a misaddressed show-cause order justified relief from default.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 8, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DIAMOND CREEK MILL, INC.

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Docket No. WEST 2011-1404-M

A.C. No. 10-02202-260530

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 January 30, 2013, the Commission received from Diamond Creek Mill, Inc. (“Diamond”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the default order entered against it.

On June 25, 2012, 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 Diamond’s failure to answer the Secretary’s September 13, 2011 Petition for Assessment of Civil Penalty.

Diamond asserts that it never received the Show Cause Order because the zip code on the envelope appears to be incorrect. The Secretary of Labor does not oppose the request to reopen.

Having reviewed Diamond’s request and the Secretary’s response, we conclude that this case should be reopened because the operator 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:

Pascale Tutt, VP

Silver Falcon Mining, Inc.

2520 Manatee Ave. West, Suite #200

Bradenton, Florida 34205

[email protected]

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