<DOC>
[DOCID: f:va9875x.wais]
LESUEUR-RICHMOND SLATE CORPORATION
January 26, 1999
VA 98-75-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868
January 26, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 98-75-M
Petitioner : A. C. No. 44-00061-05536
v. :
:
LESUEUR-RICHMOND SLATE : Richmond-Arvonia Quarry
CORPORATION, :
Respondent :
ORDER OF DISMISSAL
Before: Judge Merlin
This case is a petition for the assessment of
civil penalties filed by the Secretary of Labor under
section 105(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 815(a) .
The operator has filed a motion to dismiss the
penalty petition on the ground that the Secretary failed
to file the petition timely.
This case involves two orders that were issued on
March 17, 1998, under section 104(d)(2) of the Act, 30
U.S.C. � 814(d)(2), for alleged violations of mandatory
standards.
On July 15, 1998, the Secretary issued a notice of
proposed civil penalty assessments. According to the
certified mail return receipt, the operator received the
notice of proposed civil penalties on July 22, 1998. The
operator contends that it timely contested this assessment
by letter dated July 23, 1998, and it has provided a copy
of the letter together with a certified mail receipt signed
by an MSHA employee showing that on July 27, 1998, the
letter was received. 29 C.F.R. � 2700.26. Based upon the
receipt date, the 45 day period allowed for filing
the penalty petition expired on September 10, 1998. 29
C.F.R. � 2700.28.
The Solicitor advises that MSHA's Civil Penalty
Office has no record of receiving the July 23 letter.
MSHA mailed a demand letter for payment on September 23,
1998, and on September 28, 1998, counsel for the operator
faxed to MSHA a copy of the July 23 letter. The faxed
copy is the only record MSHA has of the operator's
contest. Thereafter, the Civil Penalty Office changed
the status of the case from closed to open and treated
September 28 as the date of receipt of the hearing request.
The penalty petition was filed on November 6, 1998,
which is within 45 days of September 28. Under standards
established by the courts, the operator is only required
to use a method to effectuate service that is
reasonably calculated under all the circumstances to
apprise the interested party of the pendency of the action.
Mullane v. Central Hanover B. & T. Co., 339 U.S. 306 (1950).
Certified mail has been held to satisfy the due process due
a litigant or prospective litigant. Fuentes-Argueta v.
I.N.S., 101 F.3d 867, 872 (2nd Cir. 1996); U.S. v. Clark,
84 F.3d 378, 381 (10th Cir. 1996); Sarit v. U.S. Drug
Enforcement Admin., 987 F.2d 10, 14-15 (1st Cir. 1993).
Moreover, the courts have recognized that due
process does not require that the interested party
actually receive notice. In Re Blinder, Robinson & Co.,
Inc., 124 F.3d 1238, 1243 (10th Cir. 1997); Fuentes-Argueta
v. I.N.S., supra at 872; U.S. v. Clark, supra at 381;
Katzson Bros., Inc. v. U.S.E.P.A., 839 F.2d 1396, 1400
(10th Cir. 1988); Weigner v. City of New York, 852 F.2d
646, 650 (2nd 1988); Stateside Machinery Co., Ltd v.
Alperin, 591 F.2d 234, 241 (1979).
The certified mail receipt demonstrates that the
operator's request for hearing was properly mailed and
served. The receipt also establishes that on July 27,
1998, MSHA received the hearing request. See, Brian
Forbes, 20 FMSHRC 461 (April 1998). The Solicitor does
not challenge the validity of the certified mail receipt
and he does not dispute that on July 27 the contest
was received. He merely states that MSHA has no record
of receiving the contest and submits an affidavit from
the Acting Chief Civil Penalty Compliance Office setting
forth general procedures for handling contests. Based
upon this record, I find that service by the operator
was proper and complete on July 27. I reject the Solicitor's
contention that MSHA did not receive notice of the
operator's contest until September 28. The fact
that MSHA may have misplaced, misfiled or lost the
contest does not render service invalid and does not
alter the date the contest was filed. Accordingly,
the penalty petition was untimely.
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). The
Secretary must establish adequate cause for the delay in
filing, apart from any consideration of whether the
operator was prejudiced by the delay. Rhone-Poulenc
of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). Adequate
cause has been found in a number of situations. See
e.g. Medicine Bow Coal Co., 4 FMSHRC 882 (May
1982); Wharf Resources USA Incorporated, 14 FMSHRC 1964
(November 1992); Fisher Sand and Gravel Company, 14
FMSHRC 1968 (November 1992); Roberts Brothers Coal
Company, 17 FMSHRC 1103 (June 1995); Lone Mountain
Processing Incorporated, 17 FMSHRC 839 (May 1995);
Austin Powder Company, 17 FMSHRC 841 (May 1995); Ibold
Incorporated, 17 FMSHRC 843 (May 1995); Secretary of
Labor v. Roger Chistensen, 18 FMSHRC 1693 (August 1996).
In this case, the Solicitor does not allege adequate
cause for late filing and therefore, he offers no reasons
why the operator's contest was not recorded when it was
received. The Solicitor's sole basis for opposing dismissal
is the argument that the date of filing for the contest
should be the date MSHA finally recorded receipt. As I have
already held, MSHA's errors or lapses do not control filing
dates. If the Solicitor had come forward with reasons
sufficient to demonstrate adequate cause for not recording
receipt, as Solicitors have done in the past, the result
here might have been different.
In light of the foregoing, it is ORDERED that the
operator's motion to dismiss be GRANTED and that this case
be DISMISSED.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Javier I. Romanach, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203
Adele L. Abrams, Esq., Patton Boggs, L.L.P., 2550 M
Street, N.W., Washington, DC 20037
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