<DOC>
[DOCID: f:ct98154.wais]
BRAUNTEX MATERIALS
July 30, 1998
CENT 98-154-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
July 30, 1998
BRAUNTEX MATERIALS, : CONTEST PROCEEDINGS
INCORPORATED, :
Contestant : Docket No. CENT 98-154-RM
: Citation No. 4444397; 9/5/97
:
: Docket No. CENT 98-155-RM
SECRETARY OF LABOR, : Citation No. 4444398; 11/14/97
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA) : Docket No. CENT 98-156-RM
Respondent : Citation No. 4109013; 11/14/97
:
: Brauntex Materials
: Mine ID 41-02743
ORDER OF DISMISSAL
Before: Judge Merlin
The issue presented for determination is whether
these cases were timely filed.
The cases were received on June 9, 1998, by the Mine
Safety and Health Administration and forwarded to this
Commission where they were received on June 10, 1998.
Citation No. 4444397 (Docket No. CENT 98-154 RM) was
issued on September 5, 1997, under section 104(a) of the
Mine Act, 30 U.S.C. � 814(a). It was modified on
November 14, 1997, and November 26, 1997. An order of
termination was issued on April 12, 1998.
Citation No. 4444398 (Docket No. CENT 98-155-RM) was
issued on November 14, 1997, under section 104(d)(1),
30 U.S.C. � 814(d)(1). It was modified on November 21,
November 26, December 4 and December 18, 1997. An order of
termination was issued on April 12, 1998.
Citation No. 4109013 (Docket No. CENT 98-156-RM) was
also issued on November 14, 1997, under section 104(d)(1),
supra. It was modified on November 21, November 26 and
December 18, 1997. An order of termination was issued on
April 12, 1998.
Section 105(d) of the Act, 30 U.S.C. � 815(d),
provides that within 30 days of the receipt thereof an
operator may contest the issuance or modification of an
order or citation.
The operator alleges that it received the termination
orders on May 12, 1998, and argues that a termination is
the same as a modification for purposes of deciding
timeliness. Under the operator's approach, its filing on
June 9, 1998, fell on the 28th day.
The termination orders dated April 12, 1998, contain
the name of the individual upon whom service was made. I
take judicial notice that service is customarily made on
the day the citation or order is issued. Even if service
had been by mail, it would not have taken 30 days, absent
some unusual circumstance. The operator has submitted
nothing to support its claim that it did not receive orders
of the termination until May 12, 1998, and I, therefore
reject it. On this basis, I find these cases were untimely
filed.
Moreover, even if the receipt date for the termination
orders is accepted as May 12, the operator cannot prevail.
The operator attempts to treat terminations and
modifications as though they are interchangeable and in
this way have the 30 days begin to run upon receipt of the
terminations. However, the Act makes clear that they are
not the same. Section 105(d) which as already noted, gives
operators the opportunity to contest citations/orders and
modifications of them, also gives a miner and miner
representative the opportunity to contest the issuance,
modification or termination of an order. If modifications
and terminations were the same, there would be no need to
separately identify terminations. Clearly, the Act does not
give operators the right to challenge terminations, whereas
miners and their representatives are given that right.
Commission regulations follow the distinction between
modifications and terminations. 29 C.F.R. � 2700.20.
Commission case law also makes clear that
modifications and terminations are separate and distinct
actions. In Nacco Mining Company, 11 FMSHRC 1231, (July
1989), the Commission expressly stated that a modification
differs from a termination, explaining that termination
occurs when the Secretary determines that the cited
condition has been abated. 11 FMSHRC at 1236. The
Commission further said that depending on the nature of a
modification, the substantive effect of the underlying
enforcement action may or may not be changed, but that the
enforcement action remains in effect as modified. Id.
Subsequently, in Wyoming Fuel Com pany, 14 FMSHRC 1282
(August 1992), the Commission reiterated that termination
was merely an administrative action used to indicate to an
operator that it had successfully abated the cited
violation and was no longer subject to a potential
withdrawal order for failure to abate under section 104(b),
30 U.S.C. � 814(b). 14 FMSHRC at 1288.
In light of the foregoing, I conclude that the date of
termination is not the date from which the 30 day contest
begins to run. It is well established that contests by
operators of citations and orders must be brought within
30 days or be dismissed. Island Creek Coal Co. v. Mine
Workers, 1 FMSHRC 989 (August 1979); Alexander Brothers,
1 MSHC 1760 (1979); Old Ben Coal Co., 1 MSHC 1330 (1975);
Consolidation Coal Company, 1 MSHC 1029 (1972); M.A.
Walker Co., Inc., 19 FMSHRC 897 (May 1997); Asarco,
Incorporated, 16 FMSHRC 1328 (June 1994); C and S Coal
Company, 16 FMSHRC 633 (March 1994); Diablo Coal Company,
15 FMSHRC 1605 (August 1993); Costain Coal Inc.,
14 FMSHRC 1388 (August 1992); Prestige Coal Co.,
13 FMSHRC 93 (January 1991); Big Horn Calcium,
12 FMSHRC 463 (March 1990); Rivco Dredging Corporation,
10 FMSHRC 889 (July 1988); Allentown Cement Company, Inc.,
8 FMSHRC 1513 (October 1986); Industrial Resources, Inc.,
7 FMSHRC 416 (March 1985); Amax Chemical Corp.,
4 FMSHRC 1161 (June 1982); See also, ICI Explosives USA,
Inc., 16 FMSHRC 1794 (August 1994).
Accordingly, regardless of which termination date is
used, these cases are untimely filed. On this ground also
they must be dismissed.
In light of the foregoing, it is ORDERED that these
cases are DISMISSED.
Paul Merlin
Chief Administrative Law Judge
Distribution:
(Certified Mail) Daniel Diaz, Jr., Esq., Plunkett & Gibson,
Inc., P. O. Box BH002, San Antonio, TX 78201
Stephen E. Irving, Esq., Office of the Solicitor, U. S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202
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