Tilcon New York, Inc. (Commission decision, December 2, 2011)

Plain-English summary

Tilcon New York was treated as being in default after failing to answer a penalty petition. The operator showed that it had timely responded to the later show-cause order, although its filing contained a typographical error in the docket number, and that it had reached a settlement with the Secretary. The Secretary did not oppose relief. The Commission held that Tilcon had complied with the show-cause order, concluded that it was not in default, and remanded the penalty case.

Decision snapshot

• Governing law: Federal Mine Safety and Health Act of 1977
• Outcome: The default was set aside and the penalty proceeding was remanded.
• Key point: A timely show-cause response was effective despite a typographical error in the docket number.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

Or tFEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 2, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

TILCON NEW YORK, INC.

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YORK 2010-9-M
A.C. No. 30-00083-196397

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 August 2, 2011, the Commission received from Tilcon New York, Inc. (“Tilcon”) a motion submitted by counsel seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 15, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Tilcon’s failure to answer the Secretary’s February 18, 2010 Petition for Assessment of Civil Penalty.

Tilcon asserts that it filed a timely response to the Show Cause Order which included a typographical error in the case docket number. Tilcon further asserts that it reached a settlement with the Secretary regarding this case on July 7, 2011. The Secretary does not oppose the request to reopen.

Having reviewed Tilcon’s request and the Secretary’s response, in the interest of justice, we conclude that Tilcon 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

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/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

Distribution:

Sarah T, Brooks, Esq.

Oldcastle Law Group

900 Ashwood Parkway

Suite 700

Atlanta, Ga 30338-4780

[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

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021