FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 30, 2011

ORDER OF CONSOLIDATION,

ORDER DENYING STAY OF ASSIGNMENT,

ORDER GRANTING LATE FILING, AND

ORDER DENYING STAY OF ALL PROCEEDINGS

Before: Judge Barbour

            These civil penalty proceedings arise under sections 105 and 110 of the Federal Mine Safety and Health Act of 1977. (“Act” or “Mine Act”). 30 U.S.C. §§815, 820. In Docket No. WEVA 2011-1543, the Secretary of Labor, on behalf of her Mine Safety and Health Administration (“MSHA”) petitions for the assessment of a civil penalty of $16,867 for an alleged violation of 30 CFR §75.220(a)(1). In Docket No. WEVA 2011-1544, she petitions for the assessment of civil penalties totaling $8,439 for 7 alleged violations of various mandatory safety standards for underground coal mines. The alleged violations in Docket No. WEVA 2011-1544 were cited on September 11, 13, 14 and 28, 2011. The Secretary’s petition was received by the Commission on September 6, 2011. Accompanying the petition was a motion to permit its late filing and a motion to stay assignment of the case to a Commission Administrative Law Judge. On September 13, the Commission received the operator’s opposition to the motion to permit the late filing and a motion to dismiss the Secretary’s petition because it was late filed.

            On October 20, 2011 the Office of the Chief Judge assigned Docket No. WEVA 2011-1543 to the court along with Docket No. WEVA 2011-1544. In assigning the cases the chief Judge’s Office did not reference the pending motions in Docket No. WEVA 2011-1544. The two cases were assigned jointly and the court herein formally CONSOLIDATES them for hearing and decision. The Chief Judge’s decision to assign the case elicited from the Secretary a motion to stay Docket No. WEVA 2011-1544. The motion was received by the Commission on November 1, 2011. Counsel for the operator filed an opposition to the motion. It was received by the Commission on November 15, 2011.

            After considering the various motions, the court rules as follows:

MOTION TO STAY ASSIGNMENT

            Although the Office of the Chief Judge did not mention the pending motions when it assigned WEVA 20ll-1544, the court views the assignment as an implied denial of the motion to stay. The court now reiterates that DENIAL.

MOTION TO PERMIT LATE FILING

            The Secretary’s motion requests permission to file her petition outside the 45-day period for filing prescribed in Commission Rule 28(a). 29 CFR § 2700.28(a). The motion is necessitated by the fact that on April 14, 2011, the operator timely contested the penalties as proposed by the Secretary. Thus, the Secretary was slightly more than 3 months late in filing with the Commission. In moving that it be permitted to file late, the Secretary states that the delay was caused by the “high rate of contests coupled with MSHA’s limited staff.” Motion 1. The operator does not view this reason as “adequate cause” and maintains that dismissal of the petition is warranted. The operator states that to have the court “accept that a high rate of contests and limited staff should overcome [the Secretary’s] lengthy delay of more than three months . . . is simply inadequate.” Response to Motion to Permit Late Filing 2. The operator asks the court to note the decision of Commission Judge Thomas McCarthy in Long Branch Energy, WEVA 2009-1492-R et al. in which Judge McCarthy dismissed petitions that were 7 ½ to 11 ½ months late. The operator also asserts that even if the reasons for the delay noted by the Secretary are found by the court to be “adequate cause,”dismissal is still appropriate because the operator has been prejudiced. “Memories of the individuals who may have knowledge of the facts and circumstances surrounding the allegations . . . have undoubtedly faded since the issuance of the citations.” Response to Motion to Permit Late Filing 6.

            The motion is GRANTED. The court respectfully disagrees with the operator about the applicability of Judge McCarthy’s Long Branch ruling. The court takes the Secretary at her word and finds that she was in fact delayed by a high rate of contests and a limited staff. Given the fact the delay in this case is moderate, less than double the shortest delay in Long Branch, and given the fact that the Secretary was and continues to be trying to meet a significantly increased case load with what may well be inadequate resources, the court is loath to deny the Secretary and, ultimately, the public, of the chance to resolve the merits of her allegations.

            Nor is the court persuaded that the operator has been prejudiced. The operator is large. It is not new to the Act and its requirements. Served with the citations in September, 2010, it was aware of the allegations. It also was aware that under the Mine Act, penalty proposals based on the allegations would be forthcoming. While it is indeed likely that the memories of those whom the operator will call as witnesses will have faded in the interval between the issuance of the citations and the trial, this is almost always the case in civil penalty proceedings. The court observes that in order to better fix recollections both mine officials and MSHA’s inspectors frequently keep contemporaneous notes and take contemporaneous photographs and that the Commission’s rules provide for the discovery of such materials and for the deposition of those with knowledge of the events in question.

MOTION TO STAY

The Secretary’s motion to stay is based on her belief that a decision by the Commission in Long Branch will “inform [the] court’s factual and legal analysis of late-filed penalty petitions.” Motion to Stay 1. Without being presumptuous the court will simply state that it believes it has an adequate understanding of the legal analysis required when ruling on issues involving late-filed petitions, and it sees no reason for further delay. The motion is DENIED.

PREHEARING REQUIREMENTS

            The court reminds counsels and the Secretary’s certified legal representative that under the prehearing order issued on October 20, 2011, they are required to report to the court by Tuesday, January 3, 2012, whether these cases can be settled. If they cannot be settled, the cases will be set for hearing. It is possible that the court will enter an order limiting discovery when the cases are scheduled.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge 

202-434-9953

Distribution: (1^st Class U.S. Mail)

Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson

Blvd., 22^nd Floor West, Arlington, VA 22209

Charles E. Carpenter, District Manager, District 4, U.S. Department of Labor, Mine Safety

and Health Administration, 100 Bluestone Road, Mt. Hope, WV 25880-1000

Michael T. Cimino, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O. Box 553

Charleston, WV 25322