.
BECON CONSTRUCTION, INC.
Docket No. WEST 2001-204-RM
September 9, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 9, 2002
BECON CONSTRUCTION, INC., : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 2001-204-RM
v. : Citation No. 7994802; 01/02/2001
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH, :
ADMINISTRATION, MSHA : Lebec Cement Plant
Respondent : Mine ID 04-00213 AF6
:
MORTON ENGINEERING AND : CONTEST PROCEEDING
CONTRACTING, INC., :
Contestant : Docket No. WEST 2001-226-RM
: Citation No. 7994802; 01/02/2001
v. :
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH, :
ADMINISTRATION, MSHA : Lebec Cement Plant
Respondent : Mine ID 04-00213 8FQ
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH, :
ADMINISTRATION, MSHA : Docket No. WEST 2002-147-M
Petitioner : A.C. No. 04-00213-05502 AF6
:
v. :
:
BECON CONSTRUCTION COMPANY, : Lebec Cement Plant
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH, :
ADMINISTRATION, MSHA : Docket No. WEST 2002-164-M
: A.C. No. 04-00213-05504 8FQ
v. :
:
MORTON ENGINEERING & : Lebec Cement Plant
CONSTRUCTION, INC., :
Respondent :
ORDER DENYING AUTOMATIC STAY
These consolidated contest and civil penalty proceedings have been stayed
to permit the parties to complete discovery on or before October 8, 2002. The
parties have agreed that November 19, 2002, is a satisfactory hearing date.
On August 15, 2002, Morton Engineering & Construction, Inc.(Morton), citing
11 U.S.C. � 362, filed a motion for an automatic stay because of its voluntary
bankruptcy petition filed under Chapter 11 of the Bankruptcy Act. The Secretary
opposed Morton's motion on August 27, 2002.
As noted by the Secretary, although 11 U.S.C. � 362(a) provides that the
filing of a bankruptcy petition under 11 U.S.C. � 301 operates as an automatic
stay of specified proceedings against a bankruptcy petitioner, section 362(b)(4)
of the Bankruptcy Act exempts the continuation of a proceeding involving
governmental regulatory enforcement from the automatic stay provisions. The
Mine Safety and Health Administration (MSHA), the petitioner in the instant
proceedings brought pursuant to the regulatory powers delegated to it under the
Federal Mine Safety and Health Act, 30 U.S.C. � 801 et seq. (1994), is a
"governmental unit" as defined by section 101(27) of the Bankruptcy Act, 11
U.S.C. � 101(27).
Consistent with the above statutory analysis, this Commission has
consistently held that MSHA proceedings are not subject to the automatic stay
bankruptcy provisions of section 362. Sec'y of Labor o/b/o Michael L. Price and
Joe John Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1528-30 (August
1990); Sec'y v. L. Kenneth Teel, 13 FMSHRC 1915, 1916-17 (December 1991) (ALJ).
Accordingly, Morton Engineering & Construction, Inc.'s motion for an indefinite
automatic stay as a consequence of its bankruptcy filing IS DENIED. Although
the stay of these matters shall continue to permit completion of discovery, the
anticipated hearing date of November 19, 2002, remains in effect.
Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Kevin J. McNaughton, Esq., Schaffer & Lax, 5757 Wilshire Boulevard, Suite 600,
Los Angeles, CA 90036-03664
Stephen T. Clifford, Esq., Clifford & Brown, Bank of America Building, 1430
Truxtun Avenue, Suite 900, Bakersfield, CA 93301-5230
Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor,
World Trade Center, 350 South Figueroa Street, Suite 370, Los Angles, CA
90071-1202