.
ROGER CHRISTENSEN, employed by GEORGIA-PACIFIC CORPORATION
June 6, 1996
WEST 96-98-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
June 6, 1996
SECRETARY OF LABOR, : CIVIL PENALTY
PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST
96-98-M
Petitioner : A. C. No.
48-01019-05525A
:
v. : Gypsum Quarry No. 6
:
ROGER CHRISTENSEN, EMPLOYED :
BY GEORGIA-PACIFIC :
CORPORATION, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY
PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST
96-99-M
Petitioner : A. C. No.
48-01019-05526A
:
v. :
:
JESSE MARTINEZ, EMPLOYED : Gypsum Quarry No. 6
BY GEORGIA-PACIFIC :
CORPORATION, :
Respondent :
ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
These cases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against the
individual
respondents, Roger Christensen and Jesse Martinez, under
section
110(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 810(c), hereinafter referred to as the "Act".
The instant cases are based upon a citation dated August 22,
1994, issued to respondents' employer, Georgia-Pacific
Corporation,
for an alleged violation of the Act and its mandatory
standards.
A penalty petition was previously filed under section 110(a)
of
the Act, 30 U.S.C. � 810(a), against the employer and that
case,
Docket No. WEST 95-326, is presently on stay before
Administrative
Law Judge August F. Cetti pending assignment of these cases.
Respondents have filed motions to dismiss on the ground that
the Secretary has failed to timely file the penalty
petitions. The Secretary filed a response.
On April 5, 1996, the respondents filed a supplement in
support of their motions to dismiss advising that the inspector
who issued the citation for these cases recently died of
cancer.
Respondents assert that they are further prejudiced by this
development.
On April 15, 1996, an order was issued directing the
Solicitor to
respond to the respondents' April 5 supplemental reply and
advise how
she wished to proceed in this matter.
On May 15, 1996, the Solicitor advised that a mistake has
occurred and the inspector who issued the citation for these
cases
has not died and is available to testify. It remains to be
resolved
whether the respondents' original motion to dismiss should be
granted.
On November 13, 1995, the Secretary of Labor issued proposed
penalty assessments against respondents. Thereafter,
respondents
filed timely requests for hearing which were received by the
Secretary on December 7, 1995. The Secretary had 45 days after
the hearing requests to file the penalty petitions. 29 C.F.R.
� 2700.28. The petition for Docket No. WEST 96-98-M was
filed
on February 6, 1996, and the petition for Docket No. WEST 96-99
was filed on February 1, 1996. 29 C.F.R. � 2700.5(d).
The petitions were due on January 22, 1996, and therefore,
were
10 and 16 days late respectively.
The Solicitor attached a notice to her penalty petitions
tating that the petitions were untimely because the employees
of
the Department of Labor together with many other parts of the
Government
were placed on furlough from December 15, 1995, to January 8,
1996. The
Solicitor advises that these cases were received by the Denver
Office of
the Solicitor on December 24, 1995, when the office was closed
due to
the shutdown. When the office reopened, petitions were filed
with the
Commission in the order they were received. In addition,
the
Solicitor states that the Secretary requested an extension
of time in
a letter sent to the undersigned prior to the shutdown advising
that certain
filings would be late due to the shutdown and
requesting that the
time for filing be tolled.
In seeking to have these cases dismissed because the
petitions were not timely filed within 45 days, respondents
argue that the Secretary has failed to demonstrate
adequate cause for the late filing. Respondents assert
that their requests for hearing were filed one week prior
to the furlough and the Government reopened two weeks
prior to the date the petitions were due. According
to respondents, they have been prejudiced because the
citation in question was issued over a year and half ago
and they have not had access to all information supporting
the petitions.
The arguments of respondents are not persuasive.
The delay was caused by the three week partial government
shutdown which caused a backup in the Solicitor's work.
When the Government reopened, it was not just a matter
of filing the petitions in these cases, but of coping
with all the work which had not been processed for the
period involved. The Solicitor's approach of filing
petitions in order of their receipt was fair and
reasonable. The shutdown constituted good cause for
the Solicitor's brief delay in filing the petitions.
Secretary of Labor v. Bruce Eaton, Employed by Austin
Powder Company, Docket No. YORK 96-13-M, unpublished
(March 3 1996). See also, Salt Lake County Road
Department,3 FMSHRC 1714, 1716 (July 1981); Rhone-
Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).
Respondents allege they have been prejudiced by the
delay in filing the petitions. Much of the delay occurred
between the issuance of the citation and the Notice of
Proposed Assessment, almost fifteen months. I
previously have held that a seventeen month delay in
assessing penalties against an individual under section
110(c) does not constitute grounds for dismissal. A
comprehensive investigation and various levels of
internal review are necessary for a proper evaluation
of agent liability and the existence of a knowing
violation in a 110(c) case. Secretary of Labor v.
James Lee Hancock, Employed by Pittsburg & Midway Coal
Co., 17 FMSHRC 1671, 1674-1675 (September 1995). See
also, Cedar Creek Quarries et al., 17 FMSHRC 1509
(August 1995). Also, respondents have furnished no
specifics beyond the general assertion of prejudice. I
will not in these cases infer prejudice solely from the
passage of time.
In light of the foregoing, the respondents' motions to
dismiss these cases are DENIED, and it is ORDERED that the
late filed penalty petitions be ACCEPTED.
It is further ORDERED that these cases be assigned to
Administrative Law Judge Cetti.
All future communications regarding these cases should be
addressed to Judge Cetti at the following address:
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges Colonnade Center
Room 280, 1244 Speer Boulevard Denver, CO 80204
Telephone No. 303-844-3993
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
Charles H. Morgan, Esq., Alston & Bird, One Atlantic Center, 1201
West Peachtree Street, Atlanta, GA 30309-3424
Mr. Paul Larson, Production Manager, Georgia-Pacific Corp., P.
O. Box 756, Lovell, WY 82431
Cement, Lime & Gypsum Workers, 161 Washakie, Lovell, WY 82431
/gl