.
HARD ROCK MINING COMPANY, OF OLYMPIA, INC.
July 11, 2001
WEST 2000-306-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
July 11, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-306-M
Petitioner : A. C. No. 45-03212-05518
v. :
: Docket No. WEST 2000-307-M
HARD ROCK MINING COMPANY, : A.C. No. 45-03212-05519
OF OLYMPIA, INC., :
Respondent : Docket No. WEST 2000-308-M
: A.C. No. 45-03212-05520
:
: Docket No. WEST 2000-458-M
: A.C. No. 45-03212-05521
:
: Docket No. WEST 2000-500-M
: A.C. No. 45-03212-05522
:
: Docket No. WEST 2000-577-M
: A.C. No. 45-03212-05523
:
: Hard Rock Pit
ORDER TO SHOW CAUSE
These cases are before me on Petitions for Assessment of
Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(d). Proceedings in the cases
are currently stayed.[1] The Secretary has now filed a motion
requesting that the stays be lifted and the cases set for
hearing. In his motion, however, counsel for the Secretary notes
that he has not been able to contact the Respondent by telephone
and that the last letter he sent to the Respondent by certified
mail was returned "unclaimed." Attempts by this office to set up
a telephone conference call for the purpose of setting a hearing
date have met with the same results.
Permission was granted for Respondent's counsel to withdraw
from the case on October 20, 2000. A copy of the order granting
permission was sent to David F. Lapp, President, Hard Rock Mining
Co., at the company's address of record and a green, "return
receipt" card signed by what appears to be a "Karla Davis" was
received back. Since that time, however, no return receipt cards
have been received back from mail sent to the Hard Rock address
of record. On the other hand, the March 27, 2001, order
canceling the hearing and staying the proceedings in Docket No.
WEST 2000-577-M was sent to Rosemary M. Short, Bookkeeper, Hard
Rock Mining Co., in Tumwater, Washington, and the return receipt
card, signed by "D. Lapp," was received back.[2]
At a minimum, Hard Rock has not complied with Commission
Rule 5(c), 29 C.F.R. � 2700.5(c), which requires, among other
things, that: "Written notice of any change in address or
telephone number shall be given promptly to the Commission or the
Judge and all other parties." In addition, counsel for the
Secretary stated in a December 28, 2000, pleading that he had
been advised by Hard Rock's former counsel that both Lapp and the
company had filed for bankruptcy.
Since Hard Rock has not kept either the Commission or the
Secretary apprized of its status, it is not clear what the
company's position is with regard to these proceedings, or even
if the company still exists.[3] Accordingly, Hard Rock Mining
Company of Olympia, Inc., is ORDERED TO SHOW CAUSE, within 21
days of the date of this order, why it should not be held in
default in these proceedings and ordered to pay penalties in the
amount of $35,314.00 for failure to prosecute its cases. Hard
Rock may respond to this order by providing both the Secretary
and the Commission with an address and a telephone number at
which it can be contacted. Failure to respond to this order will
result in the company being held in default and ordered to pay
the $35,314.00 in proposed penalties in these cases.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-6213
**FOOTNOTES**
[1]: Docket Nos. WEST 2000-306-M, WEST 2000-307-M and WEST
2000-308-M have been on stay since August 23, 2000. Docket No.
WEST 2000-458-M has been on stay since August 24, 2000. Docket
No. WEST 2000-500-M has been on stay since October 20, 2000, and
Docket No. WEST 2000-577-M has been stayed since March 27, 2001.
[2]: This address was not provided by the company.
[3]: Telephone inquiries by this office seeking a telephone
number for the company in both Olympia and Tumwater were met with
the statement that there was no listing for the company.
Distribution: (Certified Mail) (regular mail)
Matthew L. Vandal, Esq., Office of the Solicitor, U.S.
Department of Labor, 1111 Third Avenue, Suite 945, Seattle, WA
98101-3212
David F. Lapp, President, Hard Rock Mining Company, 10145
Littlerock Road SW, Olympia, WA 98512
Rosemary M. Short, Bookkeeper, Hard Rock Mining Company, 2827
29th Avenue SW, Tumwater, WA 98512
nt