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[DOCID: f:wv200130o1.wais]
CONSOLIDATION COAL COMPANY
June 5, 2001
WEVA 2001-30
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 5, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2001-30
Petitioner : A. C. No. 46-01318-04447
:
v. : Docket No. WEVA 2001-31
: A.C. No. 46-01318-04448
CONSOLIDATION COAL COMPANY :
Respondent : Robinson Run No. 95
ORDER GRANTING MOTIONS FOR LEAVE TO FILE OUT-OF-TIME
AND DENYING MOTIONS TO DISMISS
These cases are before me on petitions for assessment
of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the "Act"). 30 U.S.C. � 815(d).
The Secretary has moved for leave to file the petitions
beyond the time allowed under Commission Procedural Rules.
Respondent has opposed the motions and moved that the
petitions be dismissed. For the reasons set forth below,
the Secretary's motions are granted and Respondent's motions
are denied.
Facts
Civil penalties were assessed by the Secretary's Mine
Safety and Health Administration (MSHA) for alleged
violations of mandatory health and safety standards and
Respondent timely served notices of contest on the
Secretary. The notice of contest for A.C. No. 46-01318-0447
(Docket No. WEVA 2001-30) was received on January 3, 2001.
The notice of contest for A.C. No. 46-01318-04448 (Docket No.
WEVA 2001-31) was received on January 2, 2001. Commission
Procedural Rule 28(a), 29 C.F.R. � 2700.28(a), specifies
that a petition for assessment of civil penalties shall be
filed within 45 days of receipt of a timely contest. The
petitions for the foregoing penalty assessments should
have been filed by February 20, 2001 and February 16, 2001,
respectively. They were filed on May 3, 2001,
approximately two and one half months beyond the deadline.
The Secretary filed motions for leave to file the
petitions out-of-time. Respondent opposed the motions and
moved that the petitions be dismissed. Respondent does not
claim that it has suffered prejudice as a result of the
untimely filings. The Secretary asserts that there was
adequate cause for the untimely filings, relying upon a
sworn statement by the Assistant District Manager for
Inspection Programs. In essence, the Secretary asserts that
the untimely filings were the result of inadvertent delay
in the transmittal of these cases to the Office of the
Solicitor. The delay resulted from a temporary reduction
in secretarial staffing due to the retirement of a
secretary in MSHA's Morgantown, West Virginia, field office.
The experienced secretary in the Fairmont, West Virginia
field office, who normally is responsible for timely
forwarding of cases to the Office of the Solicitor, was
detailed to perform the retired secretary's duties and was
attempting to perform both jobs, devoting most of her time
to the detailed position's responsibilities. Apparently,
there was also a misunderstanding that lead to a failure
of one office to retain a copy of a packing list which
resulted in an unnecessary delay while that office awaited
a copy of the packing list, a problem that is claimed to have
been corrected. The materials were transmitted to the
Solicitor's Office on May 1, 2001, where it was recognized
that the time for filing had expired. Petitions for
assessment of civil penalties and motions for leave to
late file were promptly filed with the Commission on
May 3, 2001.
Applicable Law
The Commission has made clear that the time limits for
filing a penalty petition are not to be lightly regarded by
the Secretary and that adequate cause must be shown to
justify a late filing. Even if adequate cause is shown, a
motion to dismiss may be granted if the delay has resulted
in prejudice to Respondent. Rhone-Polenc of Wyoming Co.,
15 FMSHRC 2089 (October 1993); Salt Lake Co. Road Dept.,
3 FMSHRC 1714 (July 1981). In Salt Lake, the Commission was
critical of the Secretary's reliance on high case loads and
limited clerical help as a justification for untimely filing
and also admonished the Secretary to proceed with a timely
motion to extend time when extra time is legitimately
needed.
Nevertheless, the Commission reversed the dismissal that
had been entered in that case, holding that "effectuation of
the Mine Act's substantive scheme, in furtherance of the
public interest" precluded automatic dismissal of an untimely
filed petition. Id. at 1716. It established the "adequate
cause" test for justifying a late filing and recognized that
"procedural fairness" could dictate dismissal where an
operator could establish that it had suffered prejudice as
a result of any delay. The Commission concluded its analysis
with the following language: "Allowing * * * an objection
[based on prejudice] comports with the basic principle of
administrative law that substantive agency proceedings, and
effectuation of a statute's purpose, are not to be overturned
because of a procedural error, absent a showing of prejudice."
(citations omitted). Id.
Analysis
The delays in filing here were neither insubstantial nor
excessive. While the statement relied upon by the Secretary
to explain and justify the delay is not a model of clarity,
it does appear to a reasonable degree of certainty that the
delays were attributable to a temporary staffing shortage
and an error in processing by MSHA field offices. The
processing error has been corrected. The materials to support
the petitions for assessment of civil penalties were forwarded
to the Solicitor's Office after the due dates for filing had
passed. The Solicitor's Office immediately noted the error
and promptly filed the petitions and motions for leave to
file out-of-time.
On the facts of these cases, I find that the Secretary
has fulfilled her burden of showing adequate cause for the
delay. Because Respondent claims no prejudice attributable
to the delay, the motions for leave to late file will be
granted.
ORDER
The Secretary's motions for leave to file out-of-time
are granted. The Respondent's motions to dismiss are denied.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Daniel M. Barish, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203 (Certified Mail)
Robert Vukas, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
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