<DOC>
[DOCID: f:hmi.wais]
H M I a.k.a. HEATHERLY MINING, INC.
January 30, 1997
CENT 96-84
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
January 30, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. CENT 96-84
: CENT 96-103
H M I a.k.a. HEATHERLY MINING, INC. : CENT 96-104
:
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 95-201
:
P & K CO., LTD. :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
ORDER
BY THE COMMISSION:
In each of the above-captioned cases, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to H M I a.k.a.
Heatherly Mining, Inc. ("HMI") or P & K Co., Ltd. ("P&K"), and
assessed civil penalties, for failure to answer the Secretary of
Labor's petition for assessment of civil penalty or the judge's
Order to Respondent to Show Cause.[2]
**FOOTNOTES**
[1]: Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.
[2]: In No. CENT 96-84, Chief Judge Merlin issued a Default
Order on August 14, 1996, after HMI failed to respond to his
Order to Show Cause dated June 7, 1996. In Nos. CENT 96-103 and
CENT 96-104, Chief Judge Merlin issued Default Orders on October
11, 1996, after HMI failed to respond to show cause orders issued
in each case on August 13, 1996. In No. CENT 95-201, Chief Judge
Merlin issued a Default Order on October 27, 1995, after P&K
failed to respond to his show cause order dated August 14, 1995.
In November 1996, the Commission received an Application to
File Answer Out of Time, Answer to Petition for Assessment of
Penalty, and Motion to Dismiss in each case from HMI or P&K.[3]
In their motions, HMI and P&K assert that they understood that
they had settled all outstanding citations issued by the
Department of Labor's Mine Safety and Health Administration
("MSHA") against them on or before June 30, 1996, pursuant to a
settlement agreement dated July 23, 1996.[4]
In late November of 1996, the Commission was advised by
counsel for the Secretary that MSHA had decided to write off the
penalties covered by these default orders as uncollectible. In a
subsequent letter dated December 27, 1996, the Secretary's
counsel confirmed that MSHA had agreed to deem all civil
penalties assessed against HMI and P&K before August 1, 1996, to
be uncollectible, and recommended that these cases be withdrawn
from consideration by the Commission.
**FOOTNOTES**
[3]: The Commission received an application, answer, and
motion to dismiss filed by HMI in No. CENT 96-84 on November 8,
1996, and in Nos. CENT 96-103 and 96-104 on November 13, 1996.
The Commission received an application, answer, and motion to
dismiss filed by P&K in No. CENT 95-201 on November 12, 1996.
The Commission received an amended motion to dismiss filed
by HMI in No. CENT 96-104 on November 18, 1996. The Commission
received amended versions of the application, answer and motion
to dismiss filed by P&K in No. CENT 95-201 on November 25, 1996.
These amended pleadings do not differ in material respects from
the original versions of the documents filed previously.
[4]: This settlement agreement, which is attached to each
motion to dismiss, contains an express agreement by MSHA that
"upon the wire transfer of funds [in the amount of $75,000]. . .
on the 19th day of July, 1996, or thereafter, MSHA shall be
deemed paid in full for all MSHA violations assessed through June
30, 1996, . . . ." HMI and P&K assert that they paid this sum to
MSHA by wire transfer on or about July 31, 1996.
In light of the Secretary's response, we deem there to be no
live controversy regarding the penalty. Accordingly, this case
is dismissed as moot.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner