<DOC>
[DOCID: f:ke9783r.wais]

 
M. A. WALKER CO., INC.
May 27, 1997
KENT 97-83-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730 K STREET,  N.W.,  6TH FLOOR

                 WASHINGTON, D. C.   20006-3868


                          May 27, 1997

M. A. WALKER CO., INC.,       :    CONTEST PROCEEDINGS
               Contestant     :
                              :    Docket No. KENT 97-83-RM
          v.                  :    Citation No. 4554008; 10/23/96
                              :
SECRETARY OF LABOR,           :    Docket No. KENT 97-84-RM
  MINE SAFETY AND HEALTH      :    Citation No. 4554010; 10/23/96
  ADMINISTRATION (MSHA)       :
               Respondent     :    Indian Creek Underground
                              :
                              :    Mine ID 15-00111


                        ORDER OF DISMISSAL

Before:  Judge Merlin

     On  December 31, 1996, the operator filed notices of contest
of citations  which  were  assigned  the  above-captioned  docket
numbers.   On  February 20, 1997, the Solicitor filed answers  to
the contests.

     On February  27,  1997,  I  issued  an  order  directing the
parties  to  set  forth  their positions with respect to  whether
these cases should be dismissed  for  untimely filing.  Under the
Mine Act and Commission regulations, a  notice  of  contest  of a
citation   must  be filed within 30 days of the date the citation
is issued.  30 U.S.C. � 815(d), 29 C.F.R. � 2700.20(b).   After a
review of the files,  it  appeared  that  the operator's contests
were late.

     On March 31, 1997, the Solicitor filed  her  response to the
February 27 order.  The Solicitor argues that these  cases should
be dismissed since the contests were not filed within  30 days of
the date of the issuance of the citations.

     On  April  30,  1997,  an  order  to  show  cause was issued
directing  the operator to file its response to the  February  27
order and on  May 16, 1997, the operator filed its response.  The
operator states  that  the  notices were misplaced due to limited
administrative staff and no formal legal training.

     As  noted above, the Mine  Act  and  Commission  regulations
require that  the  operator  contest a citation within 30 days of
its issuance.  Notice is completed upon mailing.  J.P. Burroughs,
3 FMSHRC 854 (1981).  The citations in these cases were issued on
October 23, 1996, and the contests  mailed  on December 23, 1996,
which were therefore, 31 days late.

     A long line of decisions going back to the Interior Board of
Mine Operation Appeals holds that cases contesting the issuance
of a citation must be brought within the statutory prescribed 30
days or be dismissed.  Consolidation Coal Company, 1 MSHC 1029
(1972); Old Ben Coal Co., 1 MSHC 1330 (1975); Alexander Brothers,
1 MSHC 1760 (1979); Island Creek Coal Co. v. Mine Workers, 1
FMSHRC 989 (Aug 1979);  Amax Chemical Corp., 4 FMSHRC 1161 (June
1982); Industrial Resources, Inc., 7 FMSHRC 416 (March 1985);
Allentown Cement Company, Inc., 8 FMSHRC 1513 (October 1986);
Rivco Dredging Corporation, 10 FMSHRC 889 (July 1988); Big Horn
Calcium, 12 FMSHRC 463 (March 1990);  Prestige Coal Co., 13
FMSHRC 93 (January 1991); Costain Coal Inc., 14 FMSHRC 1388
(August 1992); Diablo Coal Company, 15 FMSHRC 1605 (August 1993);
C and S Coal Company, 16 FMSHRC 633 (March 1994); Asarco,
Incorporated, 16 FMSHRC 1328 (June 1994); See also, ICI
Explosives USA, Inc., 16 FMSHRC 1794 (August 1994).

     Nothing in the Mine Act or applicable regulations supports
relieving an operator of the 30 day time requirement because the
operator lacks the staff or legal training.  Nor does relevant
case law support such an approach.  Only when the operator's
delay was caused by MSHA's own conduct has late filing been
permitted.  Consolidation Coal Company, 19 FMSHRC 816 (April
1997); Blue Diamond Coal Company, 11 FMSHRC 2629 (Dec. 1989),
See also, Freeman Coal Mining Corporation, 1 MSHC 1001 (1970).
Therefore, the contests must be dismissed as untimely.

     The operator should be aware, however, that it can contest
these citations when MSHA proposes civil penalty assessments for
the violations.  29 C.F.R. � 2700.21.

     In light of the foregoing, it is ORDERED that these case be
DISMISSED.





                              Paul Merlin
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Mr. Lyle Walker, President, M. A.
Walker Company, Inc., P. O. Box
143, McKee, KY 40447

Donna E. Sonner, Esq., Office of
the Solicitor, U. S. Department of
Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-
2862


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