FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 27, 2012

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 June 27, 2011, the Commission received from Farrell-Cooper Mining Company (“Farrell-Cooper”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

            On December 2, 2010, 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 Farrell-Cooper’s failure to answer the Secretary’s April 28, 2010 Petition for Assessment of Civil Penalty.

            Farrell-Cooper asserts that it filed a timely response to the Show Cause Order on December 28, 2010. The Secretary does not oppose the request to reopen, and notes that the Denver Regional Solicitor’s Office received the answer on January 10, 2011. Moreover, MSHA states that its records show that the operator sent a check dated May 19, 2011, in response to a delinquency notice mailed on May 11, 2011.  

            Having reviewed Farrell-Cooper’s request and the Secretary’s response, in the interest of justice, we conclude that Farrell-Cooper 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:

Gary Geralds

Mining Development Services

30181 West CR 1253 D Road

Stigler, OK 74462

geralds@cwis.net

Sarah White, Esq.

Office of the Solicitor

U.S. Department of Labor

1999 Broadway, Suite 800

Denver, CO 80202-5708

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., 25^th 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