.
J. DAVIDSON & SONS CONSTRUCTION COMPANY, INC.
WEST 2001-162-M
March 20, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
March 20, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2001-162-M
Petitioner : A.C. No. 35-03297-05511
:
v. :
: J. Davidson & Sons
J. DAVIDSON & SONS CONSTRUCTION :
COMPANY, INC., :
Respondent :
ORDER DENYING MOTION FOR A SHOW CAUSE ORDER
J. Davidson & Sons Construction Company, Inc., ("Davidson")
requested a hearing on the citation, orders, and the $16,000
penalty proposed in this case, in accordance with the provisions
of Section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801, et seq. ("Mine Act") and 29 C.F.R. � 2700.25 et
seq. Davidson moved for an order compelling the Secretary to
produce evidence establishing good cause for its failure to
timely answer Davidson's notice of contest of citation and
penalties. The Secretary opposes the motion. For the reasons
set forth below, Davidson's motion is denied.
On May 4, 2000, the Department of Labor's Mine Safety and
Health Administration ("MSHA") issued one citation and two orders
to Davidson under section 104(d)(1) of the Mine Act. Under
section 105(d) of the Mine Act, Davidson was afforded the right
to contest the citation and orders (the "citations") within 30
days of receipt thereof. Davidson did not notify the Secretary
that it wished to contest the citations.
Davidson received the Secretary's proposed assessment of
penalties for the citations on November 27, 2000. Davidson
returned the proposed assessment form on December 22, 2000, and
stated on that form that it wished to contest all of the
citations. On that same date, Davidson also submitted a document
entitled "Notice of Contest of Citation and Penalties." The
Secretary received these documents on or about December 26, 2000.
On February 12, 2001, the Secretary filed her petition for
assessment of penalty with the Commission.
Davidson maintains that 29 C.F.R. � 2700.20(f) required the
Secretary to file an answer responding to each allegation
contained in Davidson's notice of contest within 20 days of
service. Thus, the Secretary was required to file her answer on
or before January 15, 2001. Davidson believes that the
Secretary's failure to file an answer should result in the
dismissal of this case and it asks that I issue an order to show
cause under section 2700.66(a).
The Secretary opposes Davidson's motion. She states that
because Davidson failed to contest the citations within 30 days
after it received them, the provisions of 29 C.F.R.
� 2700.20(f) do not apply. Consequently, the Secretary maintains
that she was not required to file an answer to Davidson's notice
of contest. She states that Davidson's rights are fully
protected because, by contesting the Secretary's proposed
penalties, Davidson can also dispute the validity of citations in
this civil penalty case.
In reply to the Secretary's response, Davidson maintains
that if the Secretary believed that Davidson did not timely
contest the citations, she was required to file a motion to
dismiss its notice of contest. Second, Davidson contends that
the Secretary's position is contrary to the provisions of section
105(a) of the Mine Act. It believes that the 30-day period to
contest a citation only begins to run after the operator's
receipt, via certified mail, of notification from the Secretary
of the proposed penalty assessment and the operator's right to
contest either the citation or proposed penalty within 30 days.
The critical date, under the statutory framework, is the date the
operator receives certified mail notification of its right to
contest the citation within 30 days. In order to be valid and
enforceable, the phrase "within 30 days of receipt by the
operator of the contested citation" in 29 C.F.R. � 2700.20(f)
must be interpreted to mean "receipt via certified mail of notice
of its right to contest the citation within 30 days." (Reply at
7). Finally, it argues that 29 C.F.R. � 2700.21, which allows an
operator to challenge a citation in a penalty case, is limited in
its application to cases in which only the penalty has been
contested. Davidson argues that it directly contested the
citations in this case and that the Secretary was obligated to
file an answer to its notice of contest within 20 days.
The arguments of Davidson are rejected. Section 105(a) of
the Mine Act concerns contests of citations and civil penalties
after the Secretary has issued her proposed assessment of
penalties. Under that section, the Secretary must notify the
mine operator by certified mail of the civil penalty she proposes
to be assessed under section 110(i) of the Mine Act. This notice
must advise the mine operator that it has 30 days from receipt of
the proposed penalty assessment to notify the Secretary that it
wishes to contest the citation or proposed civil penalty. The
Commission's procedural rules that implement this provision are
29 C.F.R. � 2700.25 and 2700.26. Although section 2700.26 does
not explicitly state that by contesting the penalty an operator
is also contesting the citation, the form that the Secretary
sends by certified mail to notify a mine operator of its contest
rights asks the operator to designate which "violations" it
wishes "to contest and have a formal hearing on." It is this
form, designated as "Exhibit A," that operators use to contest
penalties and citations under section 2700.26.
After a mine operator files this contest, the Secretary
files the petition for assessment of penalty under section
2700.28. The operator must file its answer within 30 days of
service of this petition for penalty under section 2700.29. The
answer must contain a short and plain statement responding to
each allegation in the petition. Each petition alleges that the
operator violated a mandatory safety or health standard as
described in the citation and that the specified penalty proposed
under section 110(i) should be assessed. The citation is
attached to the petition along with information concerning the
calculation of the proposed civil penalty. The operator must
state in its answer whether it is contesting the citation, the
penalty, or both.
Normally, the Secretary does not propose penalties until the
citation has been terminated. As a result, the proposed penalty
assessment is not sent by certified mail to the operator until
the condition described in the citation has been abated. There
are circumstances under which a mine operator may wish to contest
a citation before a penalty has been proposed. The citation may
cite a condition that exists at numerous locations throughout a
mine where the operator believes that the condition does not
violate the cited safety standard. Abating the condition
throughout the mine may be very expensive or may require that the
mine be shut down for a lengthy period of time. Under these
circumstances, the operator may desire a hearing solely on the
citation before abatement of the condition or before a penalty
has been proposed. Often operators request an expedited hearing
under such circumstances. Getchell Gold Corp, 21 FMSHRC 507
(May 1999) is an example of such a case.
Section 2700.20 of the Commission's procedural rules are
applicable only in such pre-penalty contests of citations.
Section 2700.20 does not apply to civil penalty cases, such as
this case. Section 2700.20 implements section 105(d) of the Mine
Act, not section 105(a) as alleged by Davidson. The notice of
contest sent by Davidson on December 22 was not a notice of
contest filed under section 2700.20 because it was not served
within 30 days after receipt of the citations. Instead, it was a
notice of contest filed under section 2700.26 because it was
served within 30 days after receipt of the Secretary's proposed
penalty assessment. Since Davidson also served "Exhibit A" on
the Secretary, the Commission's docket office construed the
notice of contest as Davidson's answer under 2700.29, even though
it was received before the petition for penalty was filed under
2700.28.
Section 2700.21 of the Commission's procedural rules makes
clear that an operator's failure to contest a citation under
section 2700.20 does not preclude the operator from challenging
the citation in a civil penalty case. In addition, section
2700.27 provides that an operator does not waive its right to
contest a citation or penalty unless it fails to contest the
Secretary's proposed penalty assessment. A citation becomes a
final order of the Commission by operation of law only if the
operator fails to contest the proposed penalty under 2700.26.
The fact that Davidson did not contest the citation under section
2700.20 has no legal consequences. All of its rights are
preserved in this case.
Based on the above, I conclude that the Secretary was not
required to file an answer, under section 2700.20(f), to
Davidson's notice of contest dated December 22, 2000.
Consequently, Davidson's motion for a show cause order is DENIED.
Richard W. Manning
Administrative Law Judge
Distribution:
William W. Kates, Esq., Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
George W. Goodman, Esq., Cummings, Goodman, Fish & Platt, P.O.
Box 17, McMinnville, OR 97128
RWM