<DOC>
[DOCID: f:kt2001264.wais]

 
KINDER MORGAN OPERATING LTD
July 30, 2001
KENT 2001-264-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          July 30, 2001

KINDER MORGAN OPERATING LTD,  : CONTEST PROCEEDINGS
          Contestant          :
                              : Docket No. KENT 2001-264-R
                              : Citation No. 7641370/01;
                              :   2/26/2001
          v.                  :
                              : Docket No. KENT 2001-265-R
                              : Citation No. 7641371/01; 
                              :   2/26/2001
                              :
                              : Docket No. KENT 2001-266-R
SECRETARY OF LABOR,           : Citation No. 7641372/01/02; 
  MINE SAFETY AND HEALTH      :   2/26/2001
  ADMINISTRATION, (MSHA),     :
          Respondent          : Docket No. KENT 2001-267-R
                              : Citation No. 7641373/01;
                              :   2/26/2001
                              :
                              : Docket No. KENT 2001-268-R
                              : Citation No. 7641374/01/02;
                              :   2/26/2001
                              :
                              : Docket No. KENT 2001-269-R
                              : Citation No. 7641375/01;
                              :   2/26/2001
                              :
                              : Docket No. KENT 2001-270-R
                              : Citation No. 9898588;
                              :   2/8/2001
                              :
                              : Grand Rivers Terminal
                              : Mine ID 15-18234

                         DISMISSAL ORDER

     These cases are before me on Notices of Contest under
section 105(d) of the Federal Mine Safety and Health Act of 
1977, 30 U.S.C. § 815(d).  The Secretary has moved to dismiss 
them has having been untimely filed.  The Respondent opposes 
the motion. For the reasons set forth below, the motion is 
granted.

     Section 105(d) requires that a notice contesting the
issuance of a citation must be filed within 30 days of receipt
of the citation.  In accordance with the Act, Commission Rule 
20(b), 29 C.F.R. § 2700.20(b), requires the same thing.  The 
most recent of the seven citations in these cases was issued 
on February 26, 2001.  Therefore, the notice of contest should 
have been filed by March 27, 2001.  owever, all of the notices 
of contest were filed on May 4, 2001.

     While acknowledging that the notices of contest were not
filed within the prescribed      30 days, Kinder Morgan states
that its on-site manager "inadvertently failed to forward to
Contestant's management staff or its counsel copies" of the
citations and that the manager "subsequently" believed that the
citations were included in a stay of other citations (not
involved in these proceedings). (Resp. at 2-3.)  Therefore, it
requests that the late filing be excused.

     Unfortunately, as former Chief Judge Merlin has noted:  "A
long line of decisions going back to the Interior Board of Mine
Operations Appeals holds that cases contesting the issuance of 
a citation must be brought within the statutor[il]y prescribed 
30 days or be dismissed."  M.A. Walker Co., Inc., 19 FMSHRC 897, 
898 (May 1997) (citations omitted).  Further, late filing has 
been permitted only when the delay was caused by MSHA's conduct. 
Id.

     Since there is no allegation that the delay was caused by
MSHA, I am constrained to grant the Secretary's motion.
Accordingly, it is ORDERED that the captioned cases are
DISMISSED.[1]


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Charles E. Allen, III, Esq., Frost Brown Todd, LLC, 400 West
Market Street, 32nd Floor, Louisville, KY 40202-3363

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department 
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, 
TN 37215


nt


**FOOTNOTES**

     [1]: This dismissal will not prevent the Respondent from
raising its jurisdictional challenge to these citations, since
the issue can still be raised by contesting the civil penalties
proposed for the citations.  29 C.F.R. § 2700.21.  Indeed, the
citation at issue in Docket No. KENT 2001-270-R is already
before me in Docket No. KENT 2001-281.