<DOC>
[DOCID: f:bsc.wais]

 
BSC CONSTRUCTION, INC.
March 23, 1995
WEVA 94-401


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            March 23, 1995

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :  Docket No. WEVA 94-401
                                  :
          v.                      :
                                  :
BSC CONSTRUCTION, INC.            :


BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners


                                ORDER

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal  Mine
Safety and Health Act of 1977, 30 U.S.C. �  801  et seq. (1988)
("Mine Act").  On February  21, 1995, Chief Administrative Law Judge
Paul Merlin issued an Order of Default  to  BSC   Construction, Inc.
("BSC")  for  failing  to  answer  the proposal for assessment of 
penalty filed by the Secretary of Labor on October 11, 1994, or the
judge's Order to Respondent to Show Cause of December 21, 1994.  The
judge assessed the  civil  penalties  of $800 proposed by the Secretary.

     On  March  2,  1995,  the  Commission received a letter from Roger
Glover,  BSC's operations manager, in  which Glover  states  that
BSC  had mailed  a  "letter  of appeal" on August 25, 1994, to Caryl
Casden, an attorney with the Department of Labor's Regional Solicitor's
Office  in  Arlington, Virginia.  Glover states that,  after he was  
informed that  his letter had  not been received and, after  receiving
the show cause order,  he  mailed  another appeal letter to Casden
by certified mail.  He  enclosed  a  copy  of  that letter,  dated
January 5, 1995, and a certified mail receipt dated January 9, 1995.

     The judge's jurisdiction in this matter terminated when his 
decision was issued on February  21, 1995. 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); 29 C.F.R. letter to be a timely filed petition for 
discretionary review, which we grant. See, e.g., Middle  States  
Resources, Inc., 10 FMSHRC 1130 (September 1988).

     On the basis of the present record, we are unable to evaluate
the merits of BSC's position. In the interest of justice, we remand
this matter to  the  judge,  who shall determine  whether default
is warranted. See Hickory Coal  Co.,  12 FMSHRC 1201, 1202 (June 
1990).

     For the reasons set forth above, we vacate the judge's default
order and remand this matter for further proceedings.


                                  Mary Lu Jordan, Chairman

                                  Joyce A. Doyle, Commissioner

                                  Arlene Holen, Commissioner

                                  Marc Lincoln Marks, Commissioner