<DOC>
[DOCID: f:daybra.wais]
DAY BRANCH COAL COMPANY, INC.
August 7, 1996
KENT 94-1077-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 7, 1996
DAY BRANCH COAL COMPANY, INC. :
and BOBBY JOE HENSLEY :
: Docket Nos. KENT 94-1077-R
v. : through KENT 94-1190-R
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Before: Jordan, Chairman; Holen, Marks and Riley, Commissioners
ORDER
BY THE COMMISSION:
These contest proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act"). On August 30, 1994, the Secretary of Labor filed
an unopposed motion to hold the contest cases in abeyance pending
the issuance of proposed civil penalties. Administrative Law
Judge Roy J. Maurer granted the motion on October 7, 1994. On
December 5, 1994, the Secretary filed an unopposed request for
stay of proceedings. This was based on the request of the United
States Attorney for the Eastern District of Kentucky, who asked
that the civil litigation be held in abeyance during the pendency
of potential criminal proceedings involving individuals at the
mine.
On June 19, 1996, the Secretary filed a motion to dismiss
the notices of contest, asserting that the operator did not file
notices of contest of the proposed penalties. The Secretary
contended that proposals for assessment of civil penalties
regarding the above-captioned citations were made on January 17,
and September 17, 1995. On June 27, 1996, the judge issued an
order lifting the stay and dismissing the cases.
On July 2, 1996, Day Branch Coal Company and Bobby Hensley
(collectively "operators") filed with the administrative law
judge a Motion to Reconsider and Vacate Order Entered June 27,
1996 ("Mot. to Reconsider"). The operators subsequently filed a
petition for discretionary review on August 2, 1996. Counsel for
operators contends that he did not contest penalties filed in
these proceedings because he never received notice that penalties
had been assessed. PDR at 1-2; Mot. to Reconsider at 1.
Indeed, as recently as February 5, 1996, an attorney in the
Secretary's Office of the Solicitor represented to the judge
that the Secretary had not yet assessed civil money penalties.
Letter from Malecki to Judge Maurer of 2/5/96. Counsel for
operators also states that, pursuant to 29 C.F.R. �� 2700.8 and
2700.10, the time to respond to the Secretary's June 19 motion
had not expired when the judge issued his order on June 27, 1996.
Mot . to Reconsider at 2. On July 16, 1996, the Secretary
filed his opposition to the motion to reconsider.
The Commission's procedural rules, codified at Part 2700 of
29 C.F.R., state that an opposition to a motion may be filed
within ten days after service upon the party. 29 C.F.R.
� 2700.10(c). Furthermore, the rules permit an additional five
days for filing a response when the initial document was served
by mail. 29 C.F.R. � 2700.8. The Secretary served his motion by
mail on June 19, 1996. S. Certificate of Service to Motion to
Dismiss. By issuing his order on June 27, the judge did not
allow operators the time permitted to respond under the
Commission's rules.
Accordingly, we grant the operators' petition for
discretionary review, vacate the dismissal order, and remand this
matter to the judge for further appropriate proceedings.
Operators' motion for reconsideration, which requests the same
relief as its petition, is moot.
______________________________
Mary Lu Jordan, Chairman
_______________________________
Arlene Holen, Commissioner
_______________________________
Marc Lincoln Marks, Commissioner
_______________________________
James C. Riley, Commissioner