.
UNITED METRO MATERIALS
September 28, 2001
WEST 2000-35-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
September 28, 2001
UNITED METRO MATERIALS, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 2000-35-RM
v. : Citation No. 7923659; 9/21/99
:
:
SECRETARY OF LABOR : Docket No. WEST 2000-36-RM
MINE SAFETY AND HEALTH : Citation No. 4073211; 8/3/99
ADMINISTRATION (MSHA), :
Respondent : Plant 48
: Mine ID 02-02116
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2001-180-M
Petitioner : A.C. No. 02-02116-05528
:
v. :
: Plant 48
UNITED METRO MATERIALS, :
Respondent :
ORDER OF DISMISSAL
Before: Judge Cetti
The above-captioned Contest Proceedings are consolidated
with the corresponding Civil Penalty Proceeding Docket WEST 2001-
180-M.
On March 20, 2001, Respondent, United Metro Materials
(United Metro), filed a Motion to Dismiss the above-captioned
section 110(a) civil penalty proceeding alleging an unreasonable
delay by MSHA in proposing civil penalties for the two violations
at issue in this case. In addition, United Metro states that it
was unduly prejudiced by the delay between the issuance of the
citations and the civil penalty proposal.
The material facts are not in dispute. On August 9, 1999, a
laborer working at Plant 48 located in Final County, Arizona,
operated by United Metro, was fatally injured when he was caught
in a conveyor belt return roller while attempting to clean the
roller with a hoe.
Two citations are at issue. Citation No. 7923659 charges a
violation of 30 C.F.R. � 56.14107(a) and states that the return
roller was one of two return rollers about six feet above the
ground level which was not guarded. This citation was modified
from a section 104(d)(1) citation to a section 104(a) citation
by the Secretary on November 10, 1999. At the same time two other
citations that are not presently involved in this case were
vacated. The second citation at issue is Citation No. 7923660
which arises out of the same accident charging a failure to
shutoff the conveyor prior to cleaning the rollers. The proposed
penalty for this citation is $35,000.00 and the proposed penalty
for Citation No. 7923659 is $40,000.00. Both citations were
promptly abated by United Metro. All employees were instructed
and specifically prohibited from manually cleaning conveyor
components while conveyors were in motion.
The undisputed material facts are as follows:
1. On August 9, 1999, the Mine Safety and Health
Administration ("MSHA") initiated an investigation of a fatal
accident at United Metro's facility Plant 48 located in Final
County, Arizona.
2. During the investigation, MSHA interviewed about eleven
employees and requested fewer than a hundred pages of documents
from United Metro.
3. On September 21, 1999, MSHA issued four citations to
United Metro (Citation Nos. 7923659, 7923660, 7923661, 7923663).
Two of the citations (Nos. 7923659 and 7923661) were issued under
section 104(d)(1) of the Mine Act; the other two citations (Nos.
7923660 and 7923663) were issued under section 104(a).
4. On September 24, 1999, three days after issuance of the
citations, MSHA issued its final investigation report.
5. On October 20, 1999, United Metro filed its Notice of
Contest of all four citations. The Secretary of Labor
("Secretary") filed her Answer on October 28, 1999. United
Metro's contests of the four citations were assigned to
Administrative Law Judge August F. Cetti.
6. On November 10, 1999, following a Safety and Health
Conference with MSHA's District Manager pursuant to 30 C.F.R.
� 100.6, MSHA vacated two of the citations (Nos. 7923661 and
7923663) and modified the remaining section 104(d)(1) citation
(Citation No. 7923659) to a section 104(a) citations. The other
section 104(a) citation (Citation No. 7923660) was not modified.
7. On November 19, 1999, Judge Cetti dismissed the two
proceedings involving the citations vacated by the Secretary
(Docket Nos. WEST 2000-37-RM and WEST 2000-38-RM), and
consolidated and stayed the remaining two proceedings (Docket
Nos. WEST 2000-35-RM and WEST 2000-36-RM) pending the filing of
the corresponding penalty case.
8. On December 19, 2000, MSHA issued its Proposed
Assessment of Penalties for the two remaining section 104(a)
citations. The Proposed Assessment was issued over 16 months
after MSHA began its investigation and about 14 months after its
citations and final investigation report were issued.
9. On January 11, 2001, United Metro filed its Notice of
Contest of the Proposed Assessments.
Discussion
Looking first to the Mine Act for guidance in this matter,
section 105(a)[1] of the Act requires the Secretary to notify the
operator of the civil penalty proposed within a reasonable time
after the termination of the inspection or investigation that
resulted in the issuance of the citation. In this case, the
citations were issued on September 21, 1999, and three days
later, September 24th, MSHA issued the final investigation
report. On December 19, 2000 MSHA notified the operator of the
civil penalty proposed. [Undisputed material facts No. 4, 5, and
8].
Black's Law Dictionary, 5th Ed., defines "reasonable" as
follows:
Reasonable. Fair, proper, just, moderate,
suitable under the circumstances. Fit and
appropriate to the end in view. Having the
faculty of reason; rational; governed by
reason; under the influence of reason;
agreeable to reason. Thinking, speaking, or
acting according to the dictates of reason.
Not immoderate or excessive, being synonymous
with rational, honest, equitable, fair,
suitable, moderate, tolerable.
I find the first line of the above definition particularly
fair, proper, just, and suitable under the circumstances to be
most appropriate definitions for "reasonable" as used in section
105(a) of the Act. I further find that under the undisputed
facts of this case, the 15 months delay exceeded a proper or a
suitable length of time for notifying the operator of the civil
penalty proposed. I, therefore, find the 15-month period prior
to notification of the operator of the proposed penalty is not
within a reasonable time within the meaning of section 105(a) of
the Act and as applied to the undisputed material facts and the
vague reasons given by the Secretary in her opposition to the
Motion to Dismiss.
Although the accident was tragic, it is apparent from the
record that this was a straightforward uncomplicated case
requiring the assessment of penalties for only two citations; one
alleging unguarded equipment, and the other alleging that the
same equipment was not shutdown before cleaning.
The last sentence of section 110(i), 30 U.S.C. � 820(i),
states: "In proposing civil penalties under this Act, the
Secretary may rely upon a summary review of the information
available to him and shall not be required to make findings of
fact" concerning the section 110(i) penalty factors.
The Solicitor's explanation for the delay is general and
vague. The specific circumstances which caused the delay are not
addressed.
As pointed out by United Metro there is no allegation that
the investigation was prolonged or complicated. There is no
allegation of a sudden rise in the number of special penalty
cases nor any complications with respect to the investigation.
The case involves the assessment of penalties for only two
straightforward citations: one alleging unguarded equipment and
the other alleging that the same equipment was not shut down
before cleaning.
MSHA relies on its Program Policy Manual interpretation of
the term "reasonable time" as a period of time that is less than
18 months and does not state the specific causes for the delay in
this case. Citing Christensen v. Harris County, 529 U.S. 576,
120 S.Ct. 1655, 1663 (2000).[2] United Metro contends that as a
matter of law, MSHA's 18 months' "interpretation" in its Program
Manual is not entitled to deference because it was not made
through formal adjudication or notice and comment rulemaking.
MSHA's current guidance document Program Policy Letter No.
P99-III-5 (August 16, 1999) further states that, "absent unusual
circumstances," even cases involving "a serious accident,
fatality, or other special circumstance should be assessed within
180 days [i.e., six months] of the accident . . ." In this case
MSHA exceeded its six-month guideline by nine months.
In Rhone-Poulenc, 15 FMSHRC 2089, 2093, Oct. 1993 the
Commission reaffirmed its ruling in Salt Lake and Medicine Bow
that "the Secretary must establish adequate cause for the delay
in filing, apart from any consideration of whether the operator
was prejudiced by the delay" and stated "if the Secretary fails
to demonstrate adequate cause, the case may be subject to
dismissal."
I find that the Secretary in this case failed to demonstrate
adequate cause for the substantial delay in notifying the
operator the proposed penalty.
In view of the foregoing and the principals, arguments, and
authorities cited in United Metro's Motion to Dismiss and its
Reply to Secretary's Opposition to Dismiss, I enter the following
Order of Dismissal.
ORDER
The above-captioned Civil Penalty Proceeding and the
corresponding Contest Proceedings are DISMISSED.
August F. Cetti
Administrative Law Judge
Distribution:
James A. Lastowka, Esq., McDermott, Will & Emery, 600 13th
Street, NW, Washington, D.C. 20005-3096
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
/sh
**FOOTNOTES**
[1]: Sec. 105. (a) If, after an inspection or
investigation, the Secretary issues a citation or order under
section 104, he shall, within a reasonable time after the
termination of such inspection or investigation, notify the
operator by certified mail of the civil penalty proposed to be
assessed under section 110(a) for the violation cited and that
the operator has 30 days within which to notify the Secretary
that he wishes to contest the citation or proposed assessment of
penalty.
[2]: The Supreme Court stated (120 S. Ct. At 1663):
Here, however, we confront an interpretation
contained in an opinion letter, not one
arrived at after, for example, a formal
adjudication or notice-and-comment
rulemaking. Interpretations such as those in
opinion letters-like interpretations
contained in policy statements, agency
manuals, and enforcement guidelines, all of
which lack the force of law-do not warrant
Chevron-style deference.