FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 13, 2012

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 

v.

 

RES COAL, LLC 

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Docket No. PENN 2010-426

A.C. No. 36-09604-213741


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 October 26, 2011, the Commission received from RES Coal, LLC (“RES”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.


            On March 16, 2011, Chief Administrative Law 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 RES’s failure to answer the Secretary’s August 16, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive RES’s answer within 30 days, so the order of default became effective on April 18, 2011.


            RES asserts that it did not receive the Order to Show Cause and that it had timely replied to the Secretary’s previously filed Petition for Assessment of Civil Penalty. The Secretary does not oppose the motion to reopen, and notes that the Conference Litigation Representative from MSHA District 2 has indicated that the operator’s August 24, 2010 answer was timely received.


            Having reviewed RES’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Order of Default. 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:


Steven J. Bender

Director/Safety & Health

RES Coal, LLC

224 Grange Hall Rd.

P.O. Box 228

Armagh, PA 15920


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., 25th 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