FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

November 14, 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 August 21, 2012, the Commission received from Left Fork Mining Company, Inc. (“Left Fork”) two motions seeking to reopen two penalty assessment proceedings and relieve it from the orders of default entered against it.

            On August 17, 2011, and March 6, 2012, Chief Administrative Law Judge 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 Left Fork’s failure to answer the Secretary of Labor’s May 18 and September 7, 2011, Petitions for Assessment of Civil Penalty.

            Left Fork asserts that it timely answered the assessment petitions on May 23, and September 15, 2011. It submits U.S. Postal Service tracking notifications to that effect. Left Fork further states that it did not receive the show cause order in Docket No. KENT 2011-858, and timely answered the show cause order in Docket No. KENT 2011-1377 on April 5, 2012. The Secretary does not oppose the requests to reopen, and notes that she received Left Fork’s answers.

            Having reviewed Left Fork’s requests and the Secretary’s responses, we conclude that the Default Orders have not become final orders of the Commission because the operator filed timely responses to the assessment petitions. 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:

John M. Williams, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

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

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

Washington, D.C. 20004