<DOC>
[DOCID: f:la96103.wais]
LYON SAND & GRAVEL CO.
September 26, 1996
LAKE 96-103-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
September 26, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 96-103-M
Petitioner : A.C. No. 20-00773-05525-A
:
v. :
:
RAYMOND P. ERNST, EMPLOYED : Lyon Sand & Gravel
BY LYON SAND & GRAVEL CO., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 96-104-M
Petitioner : A.C. No. 20-00773-05524-A
:
v. :
SCOTT BANDKAU, EMPLOYED BY :
LYON SAND & GRAVEL CO., : Lyon Sand & Gravel
Respondent :
ORDER OF DISMISSAL
Before: Judge Merlin
These cases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against respondents,
Scott Bandkau and Raymond P. Ernst, under section 110(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 810(c),
hereinafter referred to as the "Act". Respondents seek to have
the petitions dismissed on the ground that the Secretary has
failed to act in a timely manner.
These cases involve one citation and four orders issued to
respondents' employer, Lyon Sand & Gravel Company, under section
104(d) of the Act, 30 U.S.C. � 814(d), for alleged violations of
the Act and its mandatory standards. The five violations were
issued on September 21, 1994.
On February 26, 1996, the Secretary issued notices of
proposed civil penalty assessments against respondents and on
March 22, 1996, respondents timely requested a hearing. 29
C.F.R. � 2700.26. The Secretary had 45 days after receipt of the
hearing requests to file his penalty petitions. 29 C.F.R.
� 2700.28. In these cases the Secretary received respondent
Ernst's hearing request on March 26, 1996, and respondent
Bandkau's request on March 27, 1996. Therefore, the petitions
were due on May 10, 1996, and May 13, 1996, respectively.
29 C.F.R. � 2700.8.
The Solicitor failed to file the penalty petitions. On
June 4, 1996, orders were issued to the Secretary to show
cause within 30 days why these cases should not be dismissed
for untimely filing.
On July 12, 1996, the Solicitor filed the penalty petitions.
The petitions were accompanied by a motion for leave to file them
out of time which offered the following explanation:
The Secretary devoted many hours of review to the above-
captioned case in order to determine if a civil penalty was
appropriate based on the facts as known to him. This review
required the scheduling of meetings between interested parties,
both live and by phone which took considerable time and effort.
Therefore, the Secretary was not able to reach a conclusion
about whether to file a Petition for Assessment of Civil Penalty
in the instant case before now.
On August 13, 1996, respondents filed a motion to dismiss.
Respondents complain that the penalty petitions were not filed
within the required 45 days and point out that they were not
filed until after show cause orders were issued. Respondents
further complain that the subject citation and orders were
issued on September 21, 1994, almost 22 months before the
penalty petitions were filed. It is respondents' assertion
that the Secretary has failed to demonstrate adequate cause
and they have been prejudiced by the delays.
On August 22, 1996, the Solicitor filed a letter stating
that he would not be filing additional motions.
The Commission permits late filing of penalty petitions
where the Secretary demonstrates adequate cause for the delay
and where the respondent fails to show prejudice from the
delay. Salt Lake County Road Department, 3 FMSHRC 1714, 1716
(July 1981); Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089
(Oct. 1989).
The reasons offered by the Solicitor in these cases to
justify the late filings fall short of what is required for a
showing of adequate cause. The Solicitor makes the briefest of
responses which contains only general statements about events
which allegedly caused the untimeliness. The specific
circumstances are not addressed. The Solicitor refers to many
hours of review, but the actual times spent and the chronology
of those times are undisclosed. He mentions many meetings
between interested parties, but does not say who the parties
were or when the meetings took place. Finally, the Solicitor
fails to sufficiently answer respondents' allegations because
he does not distinguish between the delay in filing the
penalty petition and the delay in the investigation phase.
Because the Solicitor's explanation is general and vague,
it could apply to any 110(c) case where timeliness becomes
an issue.
In James Lee Hancock, Employed by Pittsburg and Midway Coal
Company. 17 FMSHRC 1669 (September 1995), I granted requests
from the Solicitor for extensions of time to file the penalty
petition and rejected claims that there were undue delays by
MSHA during its investigation and by the Solicitor in filing
the penalty petition. However, in Hancock the Solicitor
provided a detailed exposition of the problems encountered
in considering the case as well as the sequence of events
that occurred. Based upon those circumstances, he justified
the time used by the Secretary both in investigation and in
filing the penalty petition. The Solicitor here has done
none of these things.
It is axiomatic that section 110(c) is an integral and
important part of enforcement under the Mine Act. When
Solicitors are confronted with allegations such as those made
by the respondents here, they must do more than recite
generalizations unrelated to what transpired in the case.
Because there has been no showing of adequate cause, it is
not necessary to reach the issue of prejudice.
In light of the foregoing, the Solicitor's motion to file
the penalty petitions out of time is DENIED.
It is ORDERED that these cases be DISMISSED.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail) Keith E. Bell, Esq., Office of
the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Laura Beverage, Esq., Jackson & Kelly, 1616 Lincoln Street, Suite
2710, Denver, CO 80264