Eighty Four Mining Company (Commission decision, September 26, 2011)

Plain-English summary

A Chief Administrative Law Judge entered defaults in three penalty cases after Eighty Four Mining did not answer the Secretary's petitions or show-cause orders. The operator explained that the papers were mailed to a mine portal that had been closed, vacated, and locked since 2009. MSHA records confirmed that the penalty petitions were returned undelivered, and the Secretary did not oppose relief. The Commission held that the default orders had not become final because the operator never received the show-cause orders, remanded the cases, and gave the operator 30 days to answer.

Decision snapshot

• Cited standard: None
• Outcome: The three cases were remanded, with 30 days for the operator to answer the show-cause orders.
• Key point: A default does not become final when the operator never received the show-cause order because agency papers were mailed to a closed mine address.

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

September 26, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

EIGHTY FOUR MINING COMPANY

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Docket No. PENN 2009-326

A.C. No. 36-00958-173884

Docket No. PENN 2009-381

A.C. No. 36-00958-176449

Docket No. PENN 2009-526

A.C. No. 36-00958-184691

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 March 22, 2011, the Commission received from Eighty Four Mining Company (“Eighty Four”) motions made by counsel seeking to reopen three penalty assessment proceedings and relieve it from the orders of default entered against it.

On November 12, 2010 and November 15, 2010, Chief Judge Lesnick issued three Orders to Show Cause and Orders of Default in response to Eighty Four’s failure to answer the Secretary’s March 18, 2010, April 7, 2010 and April 22, 2010 Petitions for Assessment of Civil Penalty. The judge ordered the operator to file its answers within 30 days or it would be in default.

Eighty Four asserts it did not receive the Orders to Show Cause or the Secretary’s previously filed Petitions for Assessment of Civil Penalty because the mine portal to which they were mailed has been closed, vacated and locked since 2009. The Secretary does not oppose the Motions to Lift Default Orders and notes that the Mine Safety and Health Administration (“MSHA”) records show that the penalty petitions were returned “undelivered.”

Having reviewed Eighty Four’s request and the Secretary’s response, in the interest of justice, we conclude that the Orders of Default have not become final orders of the Commission because the Orders to Show Cause were never received by Eighty Four. 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. Eighty Four shall file an Answer to the Show Cause Orders within 30 days of the date of this order.

/s/______

Mary Lu Jordan, Chairman

/s/______

Michael F. Duffy, Commissioner

/s/______

Michael G. Young, Commissioner

/s/______

Robert F. Cohen, Jr., Commissioner

/s/______

Patrick K. Nakamura, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222-1000

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

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

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