<DOC>
[DOCID: f:se2000228.wais]

 
WHITE CONSTRUCTION CO., INC.
November 3, 2000
SE 2000-228-RM


        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


                        November 3, 2000

WHITE CONSTRUCTION CO. INC.,    :  CONTEST PROCEEDINGS
               Contestant       :
                                :  Docket No. SE 2000-228-RM
                                :  A. C. No. 7759166;8/9/2000
                                :
                                :  Docket No. SE 2000-229-RM
                                :  A.C. No. 7759167; 8/9/2000
                                :
                                :  Docket No. SE 2000-230-RM
                                :  A. C. No. 7759168;8/9/2000
                                :
          v.                    :  Docket No. SE 2000-231-RM
                                :  A. C. No. 7759169;8/9/2000
                                :
                                :  Docket No. SE 2000-232-RM
SECRETARY OF LABOR,             :  A. C. No. 7759170;8/9/2000
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION, (MSHA),     :  Docket No. SE 2000-233-RM
               Respondent       :  A. C. No. 7759171;8/9/2000
                                :
                                :  Docket No. SE 2000-234-RM
                                :  A. C. No. 7759172;8/9/2000
                                :
                                :  Docket No. SE 2000-235-RM
                                :  A. C. No. 7759173;8/9/2000
                                :
                                :  Docket No. SE 2000-236-RM
                                :  A. C. No. 7759174; 8/9/2000
                                :
                                :  Docket No. SE 2000-237-RM
                                :  A. C. No. 7759175;8/9/2000
                                :
                                :  Docket No. SE 2000-238-RM
                                :  A. C. No. 7759176;8/9/2000
                                :
                                :  Docket No. SE 2000-239-RM
                                :  A. C. No. 7759177; 8/9/2000
                                :
                                :  Docket No. SE 2000-240-RM
                                :  A. C. No. 7759178; 8/9/2000
                                :
                                :  Docket No. SE 2000-241-RM
                                :  A. C. No. 7759187;8/9/2000

                       ORDER OF DISMISSAL

Before:  Judge Barbour

     On September 8, 2000, counsel for the operator filed with
the Commission notices of contest for fourteen citations that
were issued against the operator on August 9, 2000 by an MSHA
inspector.  On September 11, 2000, I issued a letter acknowledg-
ing receipt of the notices of contest and advising the parties 
the docket numbers assigned to these matters.  The September 11
acknowledgment letter was mailed to counsel for the operator 
and the Department of Labor's Solicitor's office in Arlington 
Virginia who represents MSHA.

     On October 10, 2000, the Solicitor filed a motion to dismiss
the notices of contest and memorandum in support of the motion.
The Solicitor argues that the operator failed to notify the
Secretary that it was contesting the citations as required by the
Mine Act and Commission procedural rules.  30 U.S.C. � 815(d); 29
C.F.R. � 2700.20(b).  According to the Solicitor, the Secretary
first became aware of the contests when the Solicitor's Arlington
office received the September 11 acknowledgment letter on
September 12, 2000, which was forwarded to the Atlanta Regional
office on September 18, 2000.  On September 25, 2000, the
Solicitor contacted the Commission and a copy of the notice of
contest was faxed to him on that day.  The Solicitor asserts that
the Commission and the Secretary are two distinct entities under
the Act and that service on one is not service on the other.  The
Solicitor also notes that in Diablo Coal Co., 15 FMSHRC 1605
(August 1993), I dismissed a notice of contest that was three
days late because it deprived the Commission of jurisdiction.

     On October 16, 2000, counsel for the operator filed a
response to the Solicitor's motion to dismiss.  Counsel asserts
that he timely filed the notices with the Commission which was
confirmed by the September 11 acknowledgment letter.  In
addition, counsel claims that White Construction filed its notice
of contest with the Commission based on oral advice it had
received from the Commission.  Counsel alleges that White
Construction was only instructed to file its notices with the
Commission and to attach copies of all fourteen violations which
it did.  Counsel also distinguishes Diablo Coal noting that the
operator in that case served neither the Secretary nor the
Commission with its notice within the requisite thirty days.  By
contrast, the notices in these cases were timely filed with the
Commission. Counsel asserts that this case is more like Rivco
Dredging Corp., 10 FMSHRC 624 (1988), where the Commission held
that "innocent procedural missteps alone should not operate to
deny a party the opportunity to present its objections to
citations or orders."

     Section 105(d) of the Mine Act, 30 U.S.C. � 815(d), provides
in relevant part:

     If, within 30 days of receipt thereof, an operator . .
     . notifies the Secretary that he intends to contest the
     issuance . . . of an order issued under section 104(a),
     or citation . . . the Secretary shall immediately
     advise the Commission of such notification, and the
     Commission shall afford an opportunity for a hearing.



     Commission Rule 20(b) carries over the requirements of
section 105(d) and states:

     Contests filed by an operator. . . shall be filed with
     the Secretary at the appropriate Regional Solicitor's
     Office or at the Solicitor's Office, Mine Safety and
     Health Division, Arlington Virginia, within 30 days of
     receipt by the operator of the contested citation,
     order, or modification.

Commission Rule 20(c), 29 C.F.R. � 2700.20(c), requires the
Secretary to notify the Commission immediately when a notice of
contest has been filed.

     A long line of cases dating back to the Interior Board of
Mine Operation Appeals have held  the late filing of notices of
contest of citations is not permissible under the Mine Act and
under its predecessor the Federal Coal Mine Health and Safety Act
of 1969.  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).  However, late filing of a contest of a citation
or order has been allowed where the Secretary's own conduct is
responsible for the operator's delay in filing a notice of
contest.  Blue Diamond Coal Company, 11 FMSHRC 2629 (Dec. 1989),
See also, Consolidation Coal Co., 19 FMSHRC 816 (April 1997);
Freeman Coal Mining Corporation, 1 MSHC 1001 (1970).

     The Mine Act and Commission rules are explicit in requiring
the Secretary to be notified of the operator's intent to contest
within 30 days of the issuance of a citation.  It is clear in the
instant matters that counsel did not notify the Secretary as
required by the Mine Act and Commission Rules.  The notices were
sent to the Commission and not to the Secretary.  Notification of
the Secretary was only achieved when the September 11 acknowledg-
ment letter was mailed which was more than 30 days after the 
citations were issued.  Therefore, the contests were untimely 
and it must be determined whether these cases should be dismissed
in accordance with established precedent or whether the operator's 
failure to timely contest falls within the exception as set 
forth above where actions of the Secretary cause an operator 
to be late.

     Counsel does not allege that the Secretary engaged in
conduct that resulted in the delay, rather he alleges the actions
of the Commission that were to blame.  Counsel claims that the
operator was only instructed to file the notices with the
Commission and to attach copies of the violations.   Counsel does
not state who was contacted at the Commission with respect to the
filing of the contests or the questions asked that individual,
but simply identifies one alleged statement made by a Commission
employee regarding the requirements for filing a contest with the
Commission.  The Commission has no record of receiving a
telephone call concerning these matters.

     Moreover, a review of the notices of contest shows that
counsel was unaware of the independent role of the Commission.
Counsel erroneously addressed his contests to the "United States
Department of Labor, Federal Mine Safety and Health Review
Commission." I can only assume he did so because he did not
familiarize himself with the Mine Act or the rules of the
Commission prior to contacting the Commission or making his
filing.  Had he consulted the rules or the Act it should have
been evident that the Secretary and the Commission are
independent entities and that he was required to file his
contests in a timely fashion with the Secretary.  Because counsel
has failed to demonstrate that misconduct by the Commission
occurred in these matters and because counsel has failed to
justify why he was unaware of the Commission's rules and the Mine
Act's requirements, I find that sufficient reasons do not exist
to permit these untimely notices of contest to proceed and
therefore these matters must be dismissed.

     In light of the foregoing, the Solicitor's motion to dismiss
these case is GRANTED and it is ORDERED that these cases are
DISMISSED.  Counsel for the operator should note, however, that
the failure properly to contest a citation does not preclude the
operator from challenging in a subsequent civil penalty
proceeding the violation alleged in the citation and/or any of
the findings associated with the alleged violation.


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution:

Michael K. Grogan, Esq., Coffman, Coleman, Andrews & Grogan, 2065
Herschel Street, Jacksonville, FL 32204

Sheila K. Cronan, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203

/wd