FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

(202) 434-9950

January 2, 2013

ORDER CONDITIONALLY DENYING

RESPONDENT’S MOTION TO STAY

            This case is before me on a Petition for Assessment of Penalty pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition seeks imposition of a civil penalty in the amount of $47,716.00, for a single alleged violation of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal Mines, charged in a citation issued on June 6, 2011. Following issuance of the citation, the Secretary’s Mine Safety and Health Administration (MSHA) instituted a special investigation pursuant to section 110(c) of the Act, to determine whether enforcement action would be initiated against an individual director, officer or agent of the mine operator. No determination on a possible section 110(c) action has yet been made.

            Respondent, Dyno Nobel East-Central Region, the mine operator, filed a motion to stay proceedings pending completion of the section 110(c) investigation, on grounds that any such proceeding could be consolidated with the instant action, thereby avoiding the possibility of duplicitous litigation. The Secretary opposed the motion, arguing that there is no certainty that duplicitous litigation would result, and that the granting of an indefinite stay would run counter to what Congress and the Commission have recognized is an important public interest, i.e., the expeditious resolution of penalty cases.

Both Congress and the Commission have made abundantly clear that the “expeditious resolution of penalty cases” serves an important public interest. Buck Creek Coal Co., 17 FMSHRC 500, 503 (Apr. 1995); Scotia Coal Mining Co., 2 FMSHRC 633, 635 (Mar. 1980) (“Congress has forcefully expressed its desire for the expeditious determination of whether penalties are warranted.”) Under section 105(a) of the Act, the Secretary is to submit a proposed penalty for a cited violation to a mine operator within a “reasonable time.” The operator has 30 days to notify the Secretary that it wishes to contest the penalty, in which case, “the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing.” 30 U.S.C. § 815(d). Commission Rule 28(a) provides that “within 45 days of receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the Commission a petition for assessment of penalty.” 29 C.F.R. § 2700.28(a).

The Commission has recently clarified standards for balancing the public and private interests involved when the Secretary seeks to file a penalty petition beyond the time limit established in the rule. The Secretary must predicate such a request upon “adequate cause,” i.e., a “non-frivolous explanation for the delay.” Long Branch Energy, 34 FMSHRC ____, ____ (Aug. 30, 2012) (slip opinion at 4). If the Secretary produces evidence sufficient to establish adequate cause for the delay, an “operator must show at least some actual prejudice arising from the delay to secure a dismissal.” Id. If both adequate cause and actual prejudice are established, the decision to allow the late filing will depend upon a weighing of “the interest of fairness to the operator against the public interest in upholding the enforcement purpose inherent in section 105(d).” Id.

While there are no comparable provisions directly governing the filing and processing of penalty cases against individual agents of operators pursuant to section 110(c) of the Act, several Commission judges have determined that penalty cases against individuals must be processed expeditiously, and that delay in filing of a petition in a section 110(c) case should be analyzed using adequate cause and prejudice considerations similar to those addressed in Long Branch. See, e.g., Wayne Jones, 20 FMSHRC 1267 (Nov. 1998) (ALJ); Doyal Morgan, 20 FMSHRC 38, 40 (Jan. 1998) (ALJ); Robert Cox, 19 FMSHRC 1094 (June 1997) (ALJ). The important public interest in expeditious resolution of penalty cases is no less served by the expeditious resolution of enforcement actions against individual respondents.

Here, 18 months have passed since the original citation was issued to the operator. As of September 7, 2012, the special investigation had been initiated and completed, but it was “still pending review” by MSHA’s Technical Compliance and Investigations Office (“TCIO”), which informed the Secretary’s representative that “it could take between six to twelve months” to complete. Sec’y. Op. at 2. It was also represented during the telephonic hearing on the motion, that a subsequent review by the Solicitor might consume a comparable period of time. That the process could take two and one-half years, or more, is all the more remarkable considering that this investigation involves a single violation and one potential individual respondent.

It is arguable that it is more important that section 110(c) investigations be handled expeditiously because a delay in the investigation and assessment process could force either a substantial delay in the resolution of the related penalty case against that mine operator, or, could result in a separate hearing on the violation to adjudicate the liability of the individual respondent. The power to avoid such undesirable results resides solely with the Secretary, who controls virtually all facets of the processes by which penalty proceedings are initiated against mine operators and their agents. In order to avoid substantial delays in the resolution of penalty cases against mine operators or the inefficiency of largely duplicative litigation and the inevitable delay it would force on the resolution of other cases in the backlog of actions pending before the Commission, section 110(c) enforcement actions should be initiated within a reasonable time, considering the nature and complexity of the matters involved. Extensive delays should not be tolerated. Nor should operators charged with significant penalties be forced to proceed in the face of such investigations and, possibly, be saddled with the cost of defending essentially the same charges at multiple hearings.

ORDER

Based upon the foregoing, the motion to stay proceedings is DENIED.

By notice entered this date, this case is set for hearing on June 12, 2013, in Charlotte, North Carolina. The hearing date has been set later than it otherwise would have been in order to allow a reasonable amount of time for the Secretary to determine whether to proceed against the potential individual respondent. In order to avoid further delay and/or the necessity of duplicative proceedings, a motion to dismiss as untimely will be entertained as to any petition for assessment of civil penalty filed pursuant to section 110(c) that is not filed sufficiently in advance of the hearing date to permit consolidation of that proceeding with this case.

                                                                        /s/ Michael E. Zielinski

                                                                         Michael E. Zielinski

                                                                        Senior Administrative Law Judge

                                                                        202-434-9981

                                                                        mzielinski@fmshrc.gov

Distribution:

Robert S. Bexley, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Josh Schultz, Esq., Law Office of Adele L. Abrams, PC, 4740 Corridor Place, Suite D, Beltsville, MD 20705