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[DOCID: f:ct2001363o.wais]

 
CACTUS CANYON QUARRIES OF TEXAS, INC.
CENT 2001-363-M
February 1, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        February 1, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. CENT 2001-363-M
               Petitioner,      : A. C. No. 41-00009-05552
                                :
               v.               : Docket No. CENT 2001-364-M
                                : A. C. No. 41-00009-05553
CACTUS CANYON QUARRIES          :
     OF TEXAS, INC.,            :
               Respondent.      : Mine: Fairland Plant & Quarry

                 ORDER DENYING MOTION TO CERTIFY
                       INTERLOCUTORY REVIEW

     This case is now before me on Respondent's Motion to Certify
a  Ruling  for  Interlocutory Review by the Commission under Rule
76.  The issues Respondent  seeks  to  have the Commission review
arise out of my decision to permit the Secretary  to  file  these
Petitions  after  the lapse of the 45 day period following notice
of contest provided  in  Rule  28(a).  My Order granting leave to
file  beyond  the  45 day period was  dated  December  12,  2001.
Respondent filed a motion  to reconsider by Order and that motion
was  denied  on  December  28, 2001.   Respondent  filed  motions
addressed both to me and to  the Commission seeking interlocutory
review  of  my  decision  to permit  the  late  filing  of  these
Petitions.  Counsel for the  Secretary has now filed (January 25,
2002) a response to these motions for interlocutory review.

                             Analysis

     Under Rule 76, a Motion for  Certification  of Interlocutory
Review  poses  two  questions for the hearing Administrative  Law
Judge;  (1) does the ruling  sought  to  be  reviewed  involve  a
controlling  question  of  law,  and  (2)  will  immediate review
materially advance the final disposition of the proceeding.   For
reasons  discussed  at  greater  length  below, my answer to both
questions is negative.

     In a pedestrian sense, any issue that  has  the potential to
end  a controversy can be said to be a "controlling"  issue.   In
that sense,  the  Respondent  appears  to argue that the issue of
timing of the filing of the Petition is a controlling issue which
ought to be resolved in it's favor before  going on to the merits
of the various citations of safety violations  contained  in  the
Petitions.   What  the Respondent fails to note in Rule 76 is the
requirement that the  issue be an issue of   law, i.e. a question
of interpretation of the  law  in the facts of the case.  In this
instance, no question of law is  presented.   It is clear that an
Administrative   Law  Judge  has  great  factual  discretion   in
determining whether  to grant leave to file a Petition beyond the
period established by  the  Rules of the Commission.  While there
are cases and opinions on the  exercise  of  that  discretion, it
remains  a  factual  rather  than a legal issue and thus  is  not
appropriate for interlocutory review.  The point, if it has merit
in the eyes of a subsequently  reviewing body, has been preserved
for any necessary subsequent appeal.

     Further, it is my opinion that  interlocutory review of this
question would not materially advance  the  final  disposition of
this  proceeding.   Interlocutory review would, on the  contrary,
greatly delay the final  disposition of this proceeding.  Counsel
for the Secretary has contributed a much more detailed account of
the reasons for the small delays experienced in this case.  While
that  detail  was not necessary  to  convince  me  that  adequate
reasons for the  delay existed, they make it clear to me that the
probability of dismissal  for  delay under Rule 28 is so small as
to  be nonexistent.  Affording the  Respondent  an  interlocutory
review at this time would serve no useful function.

     I  have pending before me four Petitions for Assessment of a
Civil Penalty  against Cactus Canyon Quarries, i.e. these two and
two others.  It  is  my  intention,  as  soon  as  the  issue  of
interlocutory  review is resolved by the Commission, to conduct a
prehearing conference  in  Austin,  Texas,  on all of these cases
then  pending  before  me  in  order  to expedite a  consolidated
hearing on the merits.  Further delays  will be reduced to a bare
minimum.

     Therefore, it is

     ORDERED that the Motion for Interlocutory Review is denied.


                              Irwin Schroeder
                              Administrative Law Judge
                              703-756-5232


Distribution: (Certified Mail)

Andy Carson, Esq., 7232 Co. Rd 120, Marble Falls, Texas 78654

Christopher V. Grier, Esq., Office of the Regional Solicitor,
Department of Labor,
525 S. Griffin Street, Suite 501, Dallas, Texas 75202