<DOC>
[DOCID: f:lk9924o.wais]

 
SPROULE CONSTRUCTION COMPANY, INCORPORATED
June 10, 1999
LAKE 99-24-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., 6TH FLOOR

                  WASHINGTON, D. C. 20006-3868


                          June 10, 1999

SECRETARY OF LABOR            :    CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   :    Docket No. LAKE 99-24-M
               Petitioner     :    A. C. No. 11-03024-05502
                              :
          v.                  :
SPROULE CONSTRUCTION          :    Portable No. 2
    COMPANY, INCORPORATED,    :
               Respondent     :

                     ORDER TO VACATE DEFAULT
                       ORDER OF ASSIGNMENT

     This  case  is before me pursuant to order of the Commission
dated April 26, 1999.

     On April 27,  1999,  I issued an order directing the parties
to file certain information.   On  May  27,  1999,  the Solicitor
filed his response to the April 27 order.  The Solicitor  advises
that  MSHA  received  a  letter from the operator on December 16,
1999, and that on December  24 MSHA responded.  The Solicitor has
provided copies of these letters.   With respect to the telephone
call  from  the  operator on December 15,  the  Solicitor  merely
refers to the statement  in  MSHA's December 24 letter and offers
no independent investigation into  the  occurrence  of  the phone
call.

     On May 27, 1999, counsel for the operator filed its response
to  the  April  27  order.   Counsel  states  that the operator's
initial understanding of the December 24 correspondence with MSHA
was that it only had to send the appropriate forms to establish a
new mining operation and that upon execution of  the  forms,  the
matter  of  standing  on  the  original allegations was placed in
abeyance.  Counsel claims that the  operator  sent  the  forms to
MSHA's  office  in Peru, Illinois and confirmed its understanding
and submission with  a  telephone  call.   Counsel further argues
that at the time the operator received the penalty  petition, the
operator   was   not  familiar  with  the  applicable  Commission
procedures and failed  to appreciate the significance of the Show
Cause Order.  The operator  was under the mistaken belief that it
was already involved in the process  to  settle  and  resolve the
violations in the penalty petition.  Finally, Counsel states that
he has been engaged in settlement discussions with the Solicitor.

     The  Commission has observed that default is a harsh  remedy
and held that,  if  the  defaulting  party  can make a showing of
adequate  or  good cause for the failure to timely  respond,  the
case may be reopened  and  appropriate  proceedings on the merits
permitted.  Coal Preparation Servs., Inc.,  17  FMSHRC 1529, 1530
(Sept. 1995).  Here the operator was appearing pro  se  up  until
the default order was issued and was not familiar with Commission
procedure.   In  addition,  a  review  of the file shows that the
penalty petition was mailed on December 11, 1999.  It is apparent
that  the  operator  contacted MSHA when it  first  received  the
petition  and mistakenly  believed  that  it  had  resolved  this
matter.  It was this erroneous belief that caused the operator to
ignore the show cause order.  Therefore, I find that the operator
has demonstrated  adequate  cause  to  warrant  relief  from  the
default  order.   The  operator  is  now familiar with Commission
procedure  and  is on notice that similar  excuses  will  not  be
accepted in the future.

     Counsel for  the  operator  filed  an  answer to the penalty
petition  with his March 25, 1999, motion to vacate  the  default
order.  Accordingly, this case is ready for assignment

     In light  of the foregoing, it is ORDERED that the March 15,
1999, default order is hereby VACATED.

     It  is  further  ORDERED  that  this  case  is  assigned  to
Administrative Law Judge Jacqueline Bulluck.

     All future  communications  regarding  this  case  should be
addressed to Judge Bulluck at the following address:

               Federal Mine Safety and Health
                     Review Commission
               Office of Administrative Law Judges
               Two Skyline Center, Suite 1000
               5203 Leesburg Pike
               Falls Church, Virginia  22041

               Telephone No. (703) 756-6210
               Fax No.  (703) 756-6201


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604

Richard Reichstein, Esq., One N. LaSalle Street, Suite 3630,
Chicago, IL 60602

                              /gl

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868


Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868


W. Christian Schumann, Esq. 
Counsel, Appellate Litigation Office of the Solicitor, 
U. S. Department of Labor, 
4015 Wilson Boulevard 
Arlington, VA 22203


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868


Richard Reichstein, Esq. 
One N. LaSalle Street Suite 3630
Chicago, IL 60602


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868


Rafael Alvarez, Esq., 
Office of the Solicitor, 
U. S. Department of Labor, 
230 South Dearborn Street, 
Chicago, IL 60604