The Doe Run Company

Plain-English summary

Doe Run failed to answer two civil-penalty petitions, allowing show-cause orders to become default orders. Its safety director said she mistakenly believed informal settlement discussions with MSHA were a substitute for filing answers and did not understand the show-cause orders. The Secretary did not oppose reopening because Doe Run acted shortly after discovering the defaults, while warning that future late-contest requests might be opposed. The Commission found good cause in the interest of justice, vacated both default orders, reopened the cases, and remanded them for further proceedings.

Decision snapshot

• Cited rules: 29 C.F.R. §§ 2700.69(b) and 2700.70(a)
• Outcome: Both default orders were vacated and the penalty cases were remanded to the Chief Administrative Law Judge.
• Key point: Prompt action after discovering a default can support reopening, but settlement discussions do not replace required filings.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

October 25, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

THE DOE RUN COMPANY 

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Docket Nos. CENT 2012-247-M

CENT 2012-313-M

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 October 2, 2012, the Commission received from The Doe
Run Company (“Doe Run”) two petitions for discretionary review seeking to reopen two penalty
assessment proceedings and relieve it from the orders of default entered against it.

On August 1 and 3, 2012, Chief Administrative Law Judge Robert J. 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 Doe Run’s
failure to answer the Secretary’s January 10 and February 13, 2012, Petitions for Assessment of
Civil Penalty. Because the operator did not file its answers within 30 days, both show cause
orders became default orders on September 4, 2012.

Doe Run asserts that its safety director mistakenly believed that her informal settlement
discussions with the Mine Safety and Health Administration’s (“MSHA”) Conference and
Litigation Representative (“CLR”) were an adequate substitute to filing an answer. The safety
director further declares that she received the show cause orders, but did not review them and
was unaware of their import. The Secretary does not oppose the requests to reopen, based solely
on the fact that they were filed within a short time of discovering the default orders. The
Secretary notes, however, that Doe Run has another motion to reopen pending before the
Commission. In Docket No. CENT 2012-698-M, the safety director failed to timely mail the
contest form due to an increase in her work assignments. The Secretary cautions that she may
oppose future motions to reopen penalty assessments that are not timely contested.

The judge’s jurisdiction in these matters terminated when the defaults occurred.
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)(A)(i); 29 C.F.R. § 2700.70(a).

We have observed that default is a harsh remedy and that, if the defaulting party can make
a showing of good cause for a failure to timely respond, the case may be reopened and
appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). Having reviewed Doe Run’s requests and the Secretary’s responses, in the
interest of justice, we hereby reopen the proceedings and vacate the default orders. 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

R. Henry Moore, Esq.

Arthur Wolfson, Esq.

Jackson Kelluy, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

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., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004-1710