FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

October 25, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On October 2, 2012, the Commission received from The Doe Run Company (“Doe Run”) two petitions for discretionary review seeking to reopen two penalty assessment proceedings and relieve it from the orders of default entered against it.

            On August 1 and 3, 2012, Chief Administrative Law Judge Robert J. Lesnick issued two orders to show cause, which by their terms, became orders of default if the operator did not file its answers within 30 days. These show cause orders were issued in response to Doe Run’s failure to answer the Secretary’s January 10 and February 13, 2012, Petitions for Assessment of Civil Penalty. Because the operator did not file its answers within 30 days, both show cause orders became default orders on September 4, 2012.

            Doe Run asserts that its safety director mistakenly believed that her informal settlement discussions with the Mine Safety and Health Administration’s (“MSHA”) Conference and Litigation Representative (“CLR”) were an adequate substitute to filing an answer. The safety director further declares that she received the show cause orders, but did not review them and was unaware of their import. The Secretary does not oppose the requests to reopen, based solely on the fact that they were filed within a short time of discovering the default orders. The Secretary notes, however, that Doe Run has another motion to reopen pending before the Commission. In Docket No. CENT 2012-698-M, the safety director failed to timely mail the contest form due to an increase in her work assignments. The Secretary cautions that she may oppose future motions to reopen penalty assessments that are not timely contested.

            The judge’s jurisdiction in these matters terminated when the defaults occurred. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a).

            We have observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). Having reviewed Doe Run’s requests and the Secretary’s responses, in the interest of justice, we hereby reopen the proceedings and vacate the default orders. Accordingly, these cases are 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, Chair

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                    Patrick K. Nakamura, Commissioner

Distribution

R. Henry Moore, Esq.

Arthur Wolfson, Esq.

Jackson Kelluy, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

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

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710