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[DOCID: f:ct200239o.wais]

 
PITTSBURG & MIDWAY COAL MNG CO, YORK CANYON CMPLX
CENT 2002-39
March 13, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3867

                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030


                         March 13, 2002

SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH     :
   ADMINISTRATION (MSHA),     : Docket No. CENT 2002-39
               Petitioner     : A. C. No. 29-00845-03610
          v.                  :
                              :
PITTSBURG & MIDWAY COAL MNG   :
  CO YORK CANYON CMPLX,       :
               Respondent.    : Mine
                              : York Canyon Surface Mine

         ORDER DENYING MOTION TO RECONSIDER

     On February 7, 2002, I issued an order accepting the
Petitioner's late filed Petition for Assessment of Penalty. I
ruled that the Secretary had shown adequate cause for the 11 
day delay in filing the petition, and that the delay was not
prejudicial to the Respondent.  Subsequently, I assigned the 
case to Commission Administrative Law Judge Gary Melick. Three 
days after assignment, the Respondent moved for reconsideration 
of the Order Accepting Late Filing.  Judge Melick has returned 
the case to me so that I may rule on the motion.

     As I stated in the order accepting the petition, the
Commission has made clear that the Secretary may be given
permission to late file if there is adequate case for the delay
and if there is no prejudice to the operator. (Salt Lake County
Road Dept., 3 FMSHRC 1714, 1715 (July 1981)).  The Respondent
argues that the Secretary's assertion of "inadvertent error" as
cause for the delay is not adequate.  I disagree.

     The Secretary's counsels handle a large volume of cases
requiring penalty petitions and almost all such cases are timely
filed.  Late filed petitions are very rare. There is no hint the
Secretary is habitually slothful when it comes to filings.  None
the less, human nature being what it is, inadvertent mistakes
inevitably will be made and late filings will occur.  When, as
here, the delay is short, when the delay does not prejudice the
opposing party, and when a singular "inadvertent error" causes
delay, a more complete explanation for the delay occurred is 
not, in my judgement,  necessary and the late filed petition may 
be accepted.  The result --acceptance of the petition-- is
consistent with the Commission's historic reluctance to debar
parties on purely procedural grounds.

     ACCORDINGLY, the Motion to Reconsider is DENIED and the 
case is returned to Judge Melick for further proceedings.


                              David F. Barbour
                              Chief Administration Law Judge


Distribution:

Aaron Ramirez, Esq., Office of the Solicitor, U. S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 
(Certified Mail)

David M. Arnolds, Esq., The Pittsburg & Midway Coal Mining
Company, 4601 DTC Boulevard, Sixth Floor, Denver, CO 80237
(Certified Mail)

dcp