Bledsoe Coal Corporation (Commission decision, March 13, 2012)

Plain-English summary

A Chief ALJ entered default after the Commission did not receive Bledsoe Coal's answer to a penalty petition or its response to a show-cause order. Bledsoe stated that it had timely answered the petition, and the Secretary confirmed that MSHA's District 7 office received the answer in July 2010. The answer did not show that it had also been sent to the Commission. The Commission nevertheless vacated the default in the interest of justice and remanded for further proceedings.

Decision snapshot

• Governing authority: Federal Mine Safety and Health Act of 1977
• Outcome: The default order was vacated and the penalty case was remanded.
• Key point: Timely delivery of an answer to the MSHA district office supported reopening even though the operator did not establish separate service on the Commission.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 13, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

v.

BLEDSOE COAL CORPORATION 

:

:

:

:

:

:

:

:

Docket No. KENT 2010-1014

A.C. No. 15-18376-217047

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 September 14, 2011, the Commission received from Bledsoe Coal Company (“Bledsoe”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 16, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became an Order of Default if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Bledsoe’s failure to answer the Secretary’s June 18, 2010 Petition for Assessment of Civil Penalty. The Commission did not receive Bledsoe’s answer within 30 days, so the order of default became effective on April 18, 2011.

Bledsoe asserts that it submitted a timely answer to the Secretary’s Petition for Assessment on July 1, 2010. The Secretary does not oppose the request to reopen and notes that the operator’s answer was timely received by the MSHA District 7, Barbourville, KY Office. However, the answer does not indicate that it was also sent to the Commission, as instructed in the penalty petition.

Having reviewed Bledsoe’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Order of Default. 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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy                                                                                        

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Jeffrey S. Shell

Safety Director

Bledsoe Coal Corp.

Box 349

Bledsoe, KY 40810

Roy Timothy Cornelius

Conference & Litigation Representative

U.S. Department of Labor

MSHA

3837 S U.S. Hwy 25E

Barbourville, KY 40906

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

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021