Thompson Creek Mining Company (Commission decision, March 13, 2012)

Plain-English summary

A Chief ALJ entered default after Thompson Creek did not answer a penalty petition in the Commission's file by the show-cause deadline. Thompson Creek sought reopening, and the Secretary did not object because the regional Solicitor's office had an October 2010 answer in its case file. Although the answer did not show that it had also been sent to the Commission, the Commission reopened the proceeding in the interest of justice. It vacated the default 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: A documented answer in the opposing office's case file supported relief from default even though Commission service was not shown.

Full text (FMSHRC public release)

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.

THOMPSON CREEK MINING COMPANY

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Docket No. WEST 2010-1633

A.C. No. 10-00531-225678

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 August 4, 2011, the Commission received from Thompson Creek Mining Company (“Thompson”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On May 11, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause and Order of Default in response to Thompson’s failure to answer the Secretary’s October 7, 2010 Petition for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days or it would be in default. The Commission did not receive Thompson’s answer within 30 days, so the order of default became effective on June 10, 2011.

Thompson asserts that it timely responded to the Order to Show Cause. The Secretary does not oppose the request to reopen and notes that the Denver Regional Solicitor’s Office indicated that the operator’s October 25, 2010 answer is in the case file. However, the answer does not indicate that it was also sent to the Commission, as instructed in the penalty petition.

Having reviewed Thompson’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:

Rick Swindell

HR/Safety Representative

Thompson Creek Mining Co.

P.O. Box 62

Clayton, ID 83227

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