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[DOCID: f:c95185.wais]
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JAMES LEE HANCOCK, employed by PITTSBURGH & MIDWAY COAL COMPANY
September 20, 1995
CENT 95-185
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., SUITE 600
WASHINGTON, D.C. 20006
September 20, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-185
Petitioner : A. C. No. 29-00224-03667 A
:
v. : Cimmarron Mine
:
JAMES LEE HANCOCK, EMPLOYED :
BY PITTSBURGH & MIDWAY COAL :
COMPANY, :
Respondent :
ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING FILING
Before: Judge Merlin
This case is a petition for the assessment of civil
penalties filed by the Secretary of Labor against respondent,
James Lee Hancock, 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". Respondent seeks to have the petition
dismissed on the ground that the Secretary has failed to act in
a timely manner.
The case involves one citation and three orders issued to
respondent's employer, Pittsburgh and Midway Coal Company, under
section 104(d) of the Act, 30 U.S.C. � 814(d), for alleged
violations of the Act and its mandatory standards. The citation
and first order were issued on July 15, 1993, and the subsequent
two orders were issued on June 16, 1994.
Petitions for the assessment of civil penalties for the same
conditions also were filed by the Secretary against respondent's
employer, Pittsburgh and Midway Mining Company, under section
110(a) of the Act, 30 U.S.C. � 820(a). The first two items were
the subject of an ALJ decision after hearing which affirmed the
citation and order. Pittsburgh and Midway Mining Company, 16 FMSHRC
2260 (Nov. 1994). The latter orders are presently on stay before an
Administrative Law Judge pending assignment of this case (Docket No.
CENT 95-13).
On April 3, 1995, a civil penalty assessment was issued by
the Secretary against respondent under section 110(c), supra.
Thereafter, on April 24, 1995, respondent timely requested a
hearing. 29 C.F.R. � 2700.26. The Secretary is allowed 45 days
after the hearing request to file his penalty petition.
29 C.F.R. � 2700.28. The time for filing or serving any document
may be extended for good cause shown and the request for extension
must be filed before the expiration of the time allowed for
filing. 29 C.F.R. � 2700.9. The Solicitor filed a request for an
extension of time within which to file the penalty petition on June
12, 1995, which was the 45th day. The request was served upon
respondent, but not upon his counsel. An order dated June 19, 1995,
granted the extension. On July 11, 1995, the Solicitor filed
a second motion for a further extension of time. This motion was
served upon respondent's counsel who on July 21, 1995, filed a
memorandum in opposition to the both the first and second requests
for extensions. An order dated August 7, 1995,
directed the Solicitor to respond to the matters
raised in respondent's memorandum.[1]
Respondent first seeks dismissal on the ground that the
requests for extensions should not be granted.
The Solicitor explains the basis for his requests
as follows: Two petitions for the assessment of
civil penalties were filed against respondent's
employer under section 110(a) regarding the same
conditions for which respondent now has been
cited. The Solicitor consulted with his
colleagues who had been assigned the other cases.
As already noted, one of those dockets had been
heard and decided and the Solicitor acquired and
read the hearing transcript which was 449 pages.
He represents that he did not want to file the
110(c) petition unless and until he could reliably
determine respondent was the responsible agent and
that bringing suit was appropriate as in
accordance with the statute's substantive
requirements.
I accept the Solicitor's explanation. It was proper for him
to review the entire record compiled before he was
assigned the case. Indeed, it would have been
irresponsible for him not to have done so. I have
previously permitted the late filing of penalty
petitions upon a showing of good cause where there
has been no prejudice shown. And I have noted the
large number of mine safety cases. Here the
nature of the case and the overall caseload
constitute good cause. Power Operating Company
Incorporated, 15 FMSHRC 931, (May 1993), Wharf
Resources USA Incorporated, 14 FMSHRC 1964
(November 1992); Salt Lake County Road Department,
3 FMSHRC 1714 (July 1981). See also the
Commission's decision in Rhone-Poulenc, 15 FMSHRC
2089 (October 1993) aff'd, 57 F.3rd 982 (10th Cir.
1995). In addition, although the operator has
alleged prejudice, it has not demonstrated any
injury resulting from these extensions. In light
of the foregoing, I grant the extensions sought by
the Solicitor for the filing of the penalty
petition.[2]
Respondent also seeks dismissal of this case because
17 months elapsed between the first two citations dated
July 15, 1993, and the notice of proposed assessment dated
December 22, 1994. Respondent states that the operator is in
the midst of a reduction in force which significantly increases
the risk that critical witnesses will no longer be
available and that relevant documents will not be located. He
also advises that his employment was terminated on July 14, 1995.
Based upon these assertions, respondent alleges prejudice.
In reply, the Solicitor sets forth what transpired
during the time it took MSHA to complete its investigation.
On January 18, 1994, a special investigator was assigned to
conduct a 110(c) investigation. Because of other 110(c)
investigations to which the investigator was assigned, he
did not commence work on this case until May 9, 1994. In
the course of his activities the investigator determined
that two additional unwarrantable failure violations existed
and therefore, on June 16, 1994, issued two additional
orders. The subsequent orders were added to the investigation
on June 30, 1994. Two weeks later, on July 13, 1994, the special
investigation report and supporting materials which consisted of
more than 400 pages and contained interviews and signed statements,
were sent to MSHA's Office of Technical Compliance in Arlington,
Virginia. That office completed its review in two weeks,
finding agent liability, and forwarded the files to the MSHA
Division of the Solicitor's office, also located in
Arlington. On December 12, 1994, the Solicitor in Arlington
completed review and approved a finding of liability under
section 110(c). The file was returned to Denver and on
December 22, 1994, the District Manager mailed the notice of
proposed assessment to respondent.
Without doubt, the seventeen months between the first
citations and the proposed assessment notice constitute a
considerable period of time. This is particularly so when
this period is viewed together with the extensions of time
for filing the penalty petitions. From the information
furnished by the Solicitor it appears that much of the
elapsed time was taken up with delays in handling the case
rather by actual work. The special investigation took six
weeks. But six months passed before an investigator was
assigned to the case and an additional three months went by
because the special investigator was working on other cases.
Also the case was with the Solicitor in Arlington for five
months.
Nevertheless, it must be borne in mind that both the inves-
tigation and the various levels of internal review were
necessary for a proper evaluation of agent liability and a
knowing violation. The time used to evaluate the case could
reasonably be viewed as affording some assurance that
resources of both the individual and the government would
not be wasted by the bringing of an unworthy case.
Moreover, this case does not exist in a vacuum. I take note
that data in the Commission's docket office shows the
following: In 1990 there were 147 completed investigations
under section 110(c), 49 of which were contested for a
contest rate of 33%. In 1991 there were 256 such
investigations, 126 of which were contested for a contest
rate of 49%. In 1992 there were 308 investigations, 142 of
which were contested for a contest rate of 46%. In 1993
there were 293 investigations, of which 128 were contested
for a contest rate of 44%. In 1994 there were 251
investigations, 177 of which were contested for a contest
rate of 70%. The number of investigations is rather high
and the rate at which they are contested has risen sharply.
Section 110(a) provides that a citation be issued to an
operator within a reasonable time. The legislative history
speaks in terms of reasonable promptness for the issuance of
such citations. S. Rep. No. 181, 95th Cong., 1st Sess. 30
(1977), reprinted in, Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977, at 618 (1978).
No such requirement specifically applies under 110(c), but
elemental fairness would seem to require application of this
condition to 110(c) cases. Relevant to the meaning of this
requirement is the legislative history which specifically
recognizes that there may be instances where a citation will
be delayed because of the complexity of the issued raised, a
protracted accident investigation of other legitimate
reason. S. Rep. No. 181, supra at 30. Legislative
History, supra at 618.
In view of the considerations set forth above and after
carefully weighing all the factors, I conclude that good
cause existed for the delays. The Solicitor is, however,
cautioned that the delays in processing which occurred here
are troubling.
In addition and most importantly, respondent has not
demonstrated that he has been prejudiced by the delays. He
asserts that he runs the risk of witness and document
unavailability. But he does not show that any such
unavailability has occurred. In this case I will not infer
prejudice from the passage of time alone.
Respondent cites the ALJ decision in Curtis Crick, 15 FMSHRC
735 (April 1993). In that case the Secretary did not timely
request an extension within which to file the penalty
petition. It is therefore, distinguishable from this matter.
To the extent that Curtis Crick is contrary to anything
herein, it is not binding upon me and I decline to follow
it. 29 C.F.R. � 2700.72. More to the point is the recent
ALJ Order Denying Motions To Dismiss dated August 8, 1995,
in Cedar Creek Quarries et al, 17 FMSHRC____, (Docket No.
WEST 94-637 et al). In Cedar Creek the Administrative Law
Judge refused to dismiss a 110(c) case where the
investigation took fifteen months.
In light of the foregoing, I conclude that the time elapsed
between the issuance of the first citations and the Notice
of Proposed Assessment does not constitute a basis for
dismissal in this case. In addition, I conclude that
dismissal is not warranted when the 60 day extensions
granted the Solicitor is added.
In light of the foregoing it is ORDERED that the motion to
dismiss be DENIED.
**FOOTNOTES**
[1]: The penalty petition was filed on August 7, 1995, and
the answer was filed on August 21, 1995.
[2]: Since the first request for extension was not served
upon respondent's counsel, both requests are before me and I have
considered both of them. Accordingly, respondent has not been
injured by the lack of service. I have previously declined to
dismiss a penalty petition for lack of service. Power Operating,
supra.
It is further ORDERED that the filing of the penalty
petition be ACCEPTED.
The case will be assigned by separate order.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Robert A. Goldberg, Esq., Office of the Solicitor, U. S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264
Mr. James Lee Hancock, HCR 63, Box 201, Raton, New Mexico 87741
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Room 414, Arlington, VA 22203
/gl