.
COAL PREPARATION SERVICES, INCORPORATED
August 4, 1995
WEVA 95-53
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 4, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-53
Petitioner : A.C. No. 46-05890-03502 MHF
v. :
: Tug Valley Coal Processing
COAL PREPARATION SERVICES, :
INCORPORATED, :
Respondent :
ORDER OF DISMISSAL
Appearance: Javier I. Romanach, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
the Petitioner.
Before: Judge Weisberger
On April 27, 1995, this case was originally scheduled for
hearing for July 13, 1995, in Huntington, West Virginia, at a
site to be designated by a subsequent Order. On June 27,
1995, this case was reassigned to me. On June 26, 1995, in
anticipation of the reassignment of this case to me, I
convened a telephone conference call with Javier I. Romanach,
Esq., of the Office of the Solicitor, representing Petitioner,
and Sam Hood, representing Respondent. The representatives
indicated that they were each amenable to having this case
rescheduled and heard on July 12, 1995. It was agreed that
the hearing in this case would take place on July 12, 1995.
On June 27, 1995, a Notice of Hearing was issued scheduling
this case for hearing on Thursday, July 12, 1995, at the
following location: City Hall, Council Chambers, 800 5th
Avenue. Huntington, West Virginia. The Notice indicates it
was sent to Sam Hood, Coal Preparation Services, Inc., P.O.
Box 1237, 717 6th Avenue, Huntington, West Virginia 25714
(Certified Mail). A Return Receipt for this notice is
postmarked July 12, 1995.
On July 14, 1995, a Show Cause Order was issued directing
Respondent to show cause why a Default Order should not be
entered based on Respondent's failure to appear at the
hearing. On July 20, 1995, a statement was pertinent, as
follows "In reference to your 7-14-95 Order to Show Cause, I
went to the hearing on Thursday, 7-13 and nobody there."
I find that Respondent has not established good cause why
the case should not be dismissed. My finding is based on the
following: 1) On June 26, 1995, Respondent's representative,
Sam Hood, agreed to the rescheduling of the hearing in the
case from July 13 to July 12; 2) On June 27, 1995, a notice
was issued, scheduling this case for hearing on July 12 at a
specifically designated site 3) Respondent did not appear at
the hearing; 4) Respondent, in its Response to the Show Cause
Order, did not set forth any facts or assertions to explain
why he failed to appear at the hearing site on July 12, the
date agreed to on June 26, and set forth in the Notice issued
on June 27; and 5) Respondent asserted in his Response that "I
went to the hearing on Thursday, July 13." He attached to the
Response a copy of their original Notice issued April 27.
However, this Notice did not designate a site for the hearing.
A specific site was only designated in the Notice issued June
27, scheduling this case for hearing on July 12, 1995.
It is ORDERED that a default decision in this case be
entered in favor of Petitioner. It is further ordered that
within 30 days of this decision, Respondent shall pay a civil
penalty of $162.
Avram Weisberger
Administrative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 516, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Sam Hood, Coal Preparation Services, Inc., P.O. Box 1237,
717 6th Avenue, Huntington, WV 25714
(Certified Mail)
/ml