FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9956 / FAX: 202-434-9949

 

August 19, 2019

SECRETARY OF LABOR

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA),

                           Petitioner,

 

                       

 

 

 

 

 

 

 

 

 

 

 

 

 

 

v.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BLACKJEWEL LLC,

                           Respondent.

 

 

CIVIL PENALTY PROCEEDINGS

 

Docket No. VA 2019-86

A.C. No. 44-03088-482802

 

Docket No. VA 2019-105

A.C. No. 44-03088-486702

 

Docket No. VA 2019-121

A.C. No. 44-03088-490733

 

Mine: P-7 Pigeon Creek

 

 

Docket No. VA 2019-87

A.C. No. 44-07052-482807

 

Docket No. VA 2019-88

A.C. No. 44-07052-482807

 

Mine: D-10 Dorchester

 

 

Docket No. VA 2019-97

A.C. No. 44-07220-484725

 

Docket No. VA 2019-116

A.C. No. 44-07220-486712

 

Docket No. VA 2019-117

A.C. No. 44-07220-486712

 

Docket No. VA 2019-124

A.C. No. 44-07220-490741

 

Mine: D-17

 

 

Docket No. VA 2019-96

A.C. No. 44-07142-484723

 

Docket No. VA 2019-113

A.C. No. 44-07142-486710

 

Mine: P-12 Flat Rock

 

 

Docket No. KENT 2019-227

A.C. No. 15-18647-486602

 

Mine: D-30 Clover Fork

 

 

 

 

ORDER OF DEFAULT AND ORDER TO PAY

 

This case is before me upon a petition for assessment of civil penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).

 

These dockets involve 97 alleged violations and total proposed penalties of $125,543.00. On July 29, 2019, these dockets were consolidated for a hearing that was to occur on August 20-22, 2019. When each docket was assigned to me, I issued a prehearing order directing the parties to submit prehearing reports no less than 20 days before the commencement of the hearing. The parties were further advised that failure to comply with the terms of the order could result in sanctions. The deadline for submitting a prehearing report for these dockets was July 31, 2019. Respondent failed to submit a prehearing report.

 

On August 12, 2019, I issued an Amended Order to Show Cause directing Respondent to explain why an order of default should not be issued against it given its failure to comply with my prehearing order. I held a conference call with the parties on August 13, 2019 to discuss Respondent’s proposed course of action regarding the Amended Order to Show Cause. Respondent’s counsel relayed that in light of pending bankruptcy proceedings, no response to the Amended Order to Show Cause would be forthcoming, unless he was directed to do so, and that Respondent would expect the court to do what is expected based upon an unanswered show cause order (dockets would be defaulted). Based on this representation, the consolidated hearing was vacated on August 14, 2019.

 

On August 15, 2019, the deadline for the Amended Order to Show Cause, Respondent’s counsel informed my law clerk that Respondent would in fact be filing a response to that order. Respondent’s response to the Amended Order to Show Cause did not address the reason for its failure to submit a prehearing report by the deadline. Instead, Respondent noted the complexity of the pending bankruptcy proceedings and asked for the case to be stayed. There is no mention of how the complexity of the separate and distinct bankruptcy proceeding prevented the filing of the prehearing statement. There was no request for an extension of the due date for the prehearing order which this Court often grants.[1] In fact, it is the distinct impression of this Court that the Respondent has no intention of proceeding to hearing on these dockets.

                                           

Respondent has failed to comply with my Amended Order to Show Cause. The Commission’s procedural rules permit a finding of default and summary disposition of a case after issuance of a show cause order when a party has failed to comply with a judge’s orders. 29 C.F.R. § 2700.66.

 

WHEREFORE, I find Respondent to be IN DEFAULT.

 

Respondent’s notice of contest and request for hearing are DISMISSED. Respondent is hereby ORDERED to pay a total penalty of $125,543.00 within thirty (30) days of the date of this Order.[2]  

 

 

 

 

                                                                              /s/ Priscilla M. Rae

                                                                              Priscilla M. Rae

                                                                              Administrative Law Judge

 

 

Distribution (Electronic Mail & U.S. Certified Mail, Return Receipt Requested):

 

Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South, Arlington, VA 22202

 

James K. McElroy, CLR, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273

 

David A. Steffey, CLR, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273

 

Hagel Campbell, CLR, U. S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273

 

Joseph Jacobs, Blackjewel, LLC, P.O. Box 249, Stanville, KY 41659

 

Peter S. Gould, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver, Colorado 80202

 

Stephen D. Lerner, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver, Colorado 80202


[1] Respondent has also requested a stay of all dockets during the bankruptcy proceedings. There are currently 679 violations totaling $1,028,754.00 pending before the judges of this Commission.

[2] Checks or money orders should be sent to: Mine Safety & Health Administration, U.S. Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.