<DOC>
[DOCID: f:ct99266o.wais]

 
NORTHWESTERN RESOURCES CO.
February 7, 2000
CENT 99-266


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                        February 7, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No.  CENT 99-266
               Petitioner       : A. C. No.  41-03164-03544
          v.                    :
                                : Jewett Mine
NORTHWESTERN RESOURCES CO.,     :
               Respondent       :

                       ORDER DENYING MOTION
               TO CERTIFY FOR INTERLOCUTORY REVIEW

     This case is before me on a Petition for Assessment of 
Civil Penalty under section 105(d) of the Federal Mine Safety 
and Health Act of 1977, 30 U.S.C. § 815(d).  Before assigning 
the case to me, former Chief Administrative Law Judge Paul 
Merlin denied the Respondent's opposition to the Secretary's 
motion to accept late filing of the petition.  On January 11, 
2000, the Respondent filed a motion requesting that Judge 
Merlin's ruling be certified for interlocutory review.  The 
Secretary did not respond to the motion.

     Interlocutory review is governed by Commission Rule 76, 29
C.F.R. § 2700.76. Rule 76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i), 
provides that:

          (1) Review cannot be granted unless:

               (i) The Judge has certified, upon his
          own motion or the motion of a party, that his
          interlocutory ruling involves a controlling
          question of law and that in his opinion
          immediate review will materially advance the
          final disposition of the
          proceeding . . . .

I find that the motion must be denied because the ruling does not
involve a controlling question of law.

     In Salt Lake County Road Dept., 3 FMSHRC 1714 (1981), the
Commission held that the late filing of a Petition for Assessment
of Civil Penalty was not jurisdictional, that is, that automatic
dismissal was not required when the petition was not filed on
time.  Id. at 1716.  Instead, it established a two part test for
determining whether a late-filed petition should be dismissed:
(1)  The Secretary must establish adequate cause for the delay;
and (2) If adequate cause is established, the Respondent must
show prejudice.  Id.  The determination of both parts of the test
is within the discretion of the judge or Commission.

     In effect, the Respondent is arguing that Judge Merlin
abused his discretion in allowing the petition to be filed late.
If a matter is discretionary, it does not involve a controlling
question of law.  Accordingly, the motion to certify is DENIED.


                                T. Todd Hodgdon
                                Administrative Law Judge
                                (703) 756-6213


Distribution:

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

Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C.,
1900 Northwest Plaza,
El Paso, TX 79901-1441 (Certified Mail)

/nj