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[DOCID: f:ct2001379o-2.wais]

 
CACTUS CANYON QUARRIES OF TEXAS INCORPORATED
CENT 2001-379-M
June 17, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3867

                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030


                          June 17, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No.  CENT 2001-379-M
               Petitioner       : A. C. No.  41-00009-05554
          v.                    :
                                : Mine: Fairland Plant &
                                :   Quarries
CACTUS CANYON QUARRIES OF       :
  TEXAS INCORPORATED,           :
               Respondent       :

                 ORDER DENYING MOTION TO DISMISS
                       ORDER OF ASSIGNMENT

Before: Judge Barbour

     This case is before me pursuant to an order of the
Commission dated March 28, 2002, directing me to consider 
whether the operator, Cactus Canyon Quarries ("Cactus Canyon") 
was prejudiced by the Secretary of Labor's ("Secretary") 
364-day delay in assessing the proposed penalties for the 
citation and order at issue in this case in addition to her 
15-day delay in filing her penalty petition. In my December 13, 
2001 order, I rejected Cactus Canyon's assertion that the 
15-day delay was prejudicial and accepted the Secretary's 
late-filed petition.

     The Mine Safety and Health Administration ("MSHA") issued
the order and citation that are the subject of this case on
August 14, 2000.  Order No. 7896162 was issued because it is
alleged that an employee, observed in the raised bed of a
tractor trailer, was not wearing a safety belt and line. 
Citation No 7896127 was issued because it is alleged that the 
handrail on the walkway next to the Jam Crusher had been 
removed. The Secretary did not assess proposed penalties 
until August 13, 2001.[1]

     For the reasons articulated below, and in light of the
Commission's order, I conclude the Secretary's delay in
assessing the proposed penalties was reasonable, and Cactus 
Canyon was not prejudiced by the delay.


**FOOTNOTES**

     [1]: Cactus  Canyon  contends  the penalty assessment
was postmarked August 20, 2001, 7 days after  the date of 
assessment. Assuming the company is covert, the 7 day period  
between  August 13, 2001 and August 20, 2001 does not effect 
the outcome of  this order.


                           Discussion

1.  Reasonableness of the Delay

     Section 105(a) of the Mine Act ("the Act") requires the
Secretary to notify an operator of a proposed civil penalty
"within a reasonable time after the termination of such
inspection or investigation." 30 U.S.C. � 815(a). Although the
Act gives no guidance regarding the duration of "a reasonable
time," MSHA has  provided some direction in its Program Policy
Manual, defining "reasonable time" as "normally . . .  within 
18 months of the issuance of a citation or order."  The manual
further provides, however, that "[c]itations and orders not
associated with a serious accident, fatality, or other special
circumstance should be assessed within 31 days of the issuance
date." Program Policy Manual, Part 100, at 6(f) (2002).

     Cactus Canyon argues that MSHA's delay in assessing the
penalties was unreasonable, and, in fact, the penalties should
have been assessed within 31 days of the issuance of the 
citation and order.  Resp. Suppl. To Mot. to Dis. at 1. In 
support of it's argument, Cactus Canyon cites a decision in 
which Administrative Law Judge August Cetti ruled a 15-month 
delay unreasonable where the case was "uncomplicated."  United
Metro Materials, 23 FMSHRC 1085, 1088 (Sept. 2001)(ALJ). Judge 
Cetti concluded the Secretary had failed to demonstrate 
adequate cause for the delay because her explanation was 
general and vague, and she failed to expound upon the specific
circumstances which caused the delay.  Id.  Cactus Canyon 
further contends the Secretary offered no reason for the delay 
in response to discovery requests.  Resp. Suppl. To Mot. to 
Dis. at 1; see also Resp. Exhibits A, B, and C.

     There is no strict definition for "reasonable time" within
the meaning of Section 105(a) of the Mine Act.  The "31-day"
stipulation in the PPM is not a hard and fast rule, as evidenced
by the language "should be assessed within 31 days."  Moreover,
the Senate Committee, when drafting the Mine Act, commented on
the broad concept of "reasonable time" when it stated, "there
may be circumstances, although rare, when prompt proposal of a
penalty may not be possible, and the Committee does not expect
that the failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding." S. Rep. No. 181,
95th Cong., 1st Sess. 34 (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 622 (1978) (emphasis added).  In 
light of the Senate Committee's reluctance to establish a 
specific time frame for notifying the operator of the proposed 
penalties, the Commission has stated that Section 105(a) does 
not prescribe time periods within which the Secretary must 
issue penalty proposals.  Steele Branch Mining, 18 FMSHRC 6, 
14 (Jan. 1996).  Rather, if a proposal is delayed, the judge 
must consider:  (1) the reason for the delay, and (2) whether 
the operator is prejudiced by the delay, the identical test
used when scrutinizing the Secretary's delay in filing the 
penalty petition.  Id.

     The Secretary contends the penalty assessment was delayed
for two reasons.  First, the citation and order were not
assessed until after a Safety and Health Conference was held,
which resulted in the modification of both the citation and 
order. The conference was held 1 month after the citation and 
order were issued.  Sec. Response to Resp. Suppl. to Mot. to
Dis. at 4. Second, due to a backlog of cases and a personnel 
shortage, necessary information regarding the citation and 
order was not entered into MSHA's Management Information System
("MIS") and forwarded to the Assessments Office until May of
2001.  Id. at 5. Between May 2001 and August 14, 2001, the
Secretary further submits, the office was short staffed and
concentrating on a high caseload involving fatalities. Id. 
The Secretary cites to a decision, also by Judge Cetti, in 
which Judge Cetti found an unusually high caseload and lack
of clerical personnel adequate cause for the delay.  Art
Beavers Const. Co., 16 FMSHRC 2361, 2365-66 (Nov. 1994)(ALJ).

     I conclude the Secretary has demonstrated adequate cause 
for the delay.  MSHA's guidelines suggest that penalties not 
be assessed until after the Safety and Health Conference. PPM,
Part 100, at 6 (2002). If Cactus Canyon requested a conference -
and it does not deny having done so - the conference delayed 
the assessment of penalty until after any alterations were made 
to the citation and order as a result of the conference. 
However, it is the Secretary's case load and personnel shortage
that I find most persuasive.  An unusually high caseload and 
shortage of clerical personnel have been considered adequate 
cause for late-filed penalty petitions and in my view they are, 
likewise, sufficient reasons for the late assessment of civil 
penalties. See Salt Lake Co. Road Dep't., 7 FMSHRC 1714 (Jul.
1981); Medicine Bow Coal, 4 FMSHRC 882 May (1982); and Rhone-
Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1993), aff'd 57 
F.3rd 92 (10th cir. 1995).  Moreover, while administrative law 
judge decisions and orders are not binding precedent, I note 
that the present matter is more analogous to Art Beavers than 
to United Metro.  In United Metro, Judge Cetti observed that 
the Secretary did not offer specific reasons for the delay, 
while, in Art Beavers, she did.  In the present matter, she, 
likewise, has offered specific reasons, which I have concluded, 
constitute adequate cause.

2.  Prejudice

     Even though the Secretary has demonstrated adequate cause,
Cactus Canyon still could prevail if she was prejudiced by the
delay.  The company asserts the delay has hindered its case
because witnesses' memories have faded and witnesses have moved
beyond subpoena range and to unknown locations.  Resp. Suppl.
to. Mot. to Dis. at 2. It further contends that the "inspectors 
have no independent recollection of the citations." Id.

     The Secretary, to the contrarily, notes that when this case
was before me originally, Cactus Canyon did not claim prejudice
from the 365-day delay.  Sec. Response to Resp. Suppl. to Mot. 
to Dis. at 3.  Hence, the Secretary suggest, the company's 
claim of prejudice is more one of convenience than substance.
Id.

     I find Cactus Canyon's contentions unconvincing. The
inspection was not so long ago that memory of the events have
faded irretrievably. Moreover, Cactus Canyon yet has time to
find witnesses and, if necessary, to memorialize their 
testimony.

     Further, although Cactus Canyon claims the inspectors have
no independent recollection of the events in question, Inspector
Danny Ellis stated in a deposition taken in December of 2001 - a
portion of which was submitted by Cactus Canyon - that he does
have an independent recollection of the inspection.  Resp.
Exhibit E  at 35.  However, even if he does not have a
recollection of the events independent from his notes, as
Inspector Ralph Rodriguez asserts in his deposition, the purpose
of an inspector taking notes and photographs of an inspection is
to memorialize the event and to jog the memory of the inspector
in any future proceeding.  See Resp. Exhibit E at 23.

     Accordingly, Cactus Canyon's Motion to Dismiss is DENIED.

                       ORDER OF ASSIGNMENT

     This case is hereby assigned to Administrative Law Judge
Irwin Schroeder, who will rule on all pending motions relating 
to the actual adjudication of this case.

     All future communications regarding this case should be
addressed to Judge Schroeder at the following address:

          Federal Mine Safety and Health Review Commission
          Office of Administrative Law Judges
          Two Skyline Center, Suite 1000
          5203 Leesburg Pike
          Falls Church, Virginia  22041

          Telephone No. (703) 756-5232
          Facsimile No.  (703) 756-6201.


                              David Barbour
                              Chief Administrative Law Judge


Distribution:

Thomas A. Paige, Esq., U. S. Department of Labor, Office of 
the Solicitor, 525 Griffin South Street, Suite 501, Dallas, 
TX 75202 (Certified Mail)

Andy Carson, Esq., Cactus Canyon Quarries of Texas, 
Incorporated, 7232 Co. Road 120, Marble Falls, TX 78645 
(Certified Mail)

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