FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
September 26, 2011
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. EIGHTY FOUR MINING COMPANY |
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Docket No. PENN 2009-326 |
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 March 22, 2011, the Commission received from Eighty
Four Mining Company (“Eighty Four”) motions made by counsel seeking to reopen three penalty
assessment proceedings and relieve it from the orders of default entered against it.
On November 12, 2010 and November 15, 2010, Chief Judge Lesnick issued three Orders to Show Cause and Orders of Default in response to Eighty Four’s failure to answer the Secretary’s March 18, 2010, April 7, 2010 and April 22, 2010 Petitions for Assessment of Civil Penalty. The judge ordered the operator to file its answers within 30 days or it would be in default.
Eighty Four asserts it did not receive the Orders to Show Cause or the Secretary’s previously filed Petitions for Assessment of Civil Penalty because the mine portal to which they were mailed has been closed, vacated and locked since 2009. The Secretary does not oppose the Motions to Lift Default Orders and notes that the Mine Safety and Health Administration (“MSHA”) records show that the penalty petitions were returned “undelivered.”
Having reviewed Eighty Four’s request and the Secretary’s response, in the interest of justice, we conclude that the Orders of Default have not become final orders of the Commission because the Orders to Show Cause were never received by Eighty Four. 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. Eighty Four shall file an Answer to the Show Cause Orders within 30 days of the date of this order.
/s/____________________________________
Mary Lu Jordan, Chairman
/s/____________________________________
Michael F. Duffy, Commissioner
/s/____________________________________
Michael G. Young, Commissioner
/s/____________________________________
Robert F. Cohen, Jr., Commissioner
/s/____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
R. Henry Moore, Esq.
Jackson Kelly PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222-1000
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
US Department of Labor
1100 Wilson Blvd. 25th Floor
Arlington, VA 22209
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