.
WASHINGTON ROCK QUARRIES, INC.
January 10, 2001
WEST 2000-411-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                        January 10, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. WEST 2000-411-M
               Petitioner       : A.C. No. 45-03224-05515
                                :
          v.                    :
                                : Champion Pit
WASHINGTON ROCK QUARRIES, INC., :
               Respondent       :


            ORDER DENYING MOTION FOR SUMMARY DECISION

     Counsel for the Secretary filed a motion for summary
decision in this case.  The motion was mailed on January 3, 2001.
The hearing in the case is scheduled for January 17, 2001.  The
Secretary sets forth two grounds for the motion.  First, she
states that she should be granted summary decision as a matter of
law because Respondent exceeded the time required "to contest the
citations."  Second, she contends that there are no genuine
issues of material fact with respect to the merits of the case.
Respondent opposes the Secretary's motion or, in the alternative,
asks that it be granted an opportunity to respond in full.

     The Commission's Procedural Rules provide that a "motion for
summary decision shall be granted only if the entire record,
including pleadings, depositions, answers to interrogatories,
admissions, and affidavits shows:  (1) that there is no genuine
issue as to any materials facts; and (2) that the moving party is
entitled to summary decision as a matter of law."  29 C.F.R.
� 2700.67(b).  The Commission's procedural rule further states
that a motion for summary decision must be supported.  The
Secretary attached affidavits of MSHA Inspectors Randy W. Horn
and Rick Dance.

     With respect to the Secretary's first ground for the motion,
I note that the Secretary, on or about August 14, 2000, filed a
motion with the Commission's chief administrative law judge
requesting a "summary order assessing the proposed penalties as
final and directing that such penalties be paid."  She based this
motion on the fact that an answer to her petition for penalty had
not yet been filed.  By order dated August 24, 2000, the chief
judge denied the motion.  In addition, on August 10, 2000, the
chief judge issued an order to show cause granting Respondent 30
days from that date to file its answer.  Counsel for the
Respondent filed his appearance and answer on September 6, 2000,
within this 30-day period.

     It is clear that Respondent intended to contest the
citations and penalties when it filed its notice of contest under
29 C.F.R. � 2700.26.  It failed to file an answer to the
Secretary's petition for penalty within the time required by 29
C.F.R. � 2700.29.  This 30-day requirement is not jurisdictional
and the Commission's chief judge, in effect, granted Respondent a
30-day extension of time.  The cases cited by the Secretary on
page 11 of its motion are not applicable.  Those cases concern
late-filed pre-penalty contests of citations and orders under 29
C.F.R. � 2700.20.  This case is a penalty proceeding and concerns
a late-filed answer to the Secretary's petition for penalty.
Commission law with respect to these distinct issues is not the
same.  Consequently, I deny this portion of the Secretary's
motion.

     The Secretary also contends that there is no genuine issue
of material fact and that she is entitled to summary decision as
a matter of law on the merits of the case.  She attached
affidavits of the two MSHA inspectors that issued the citations
at issue in these cases.  These affidavits, which total about
seven pages, set forth the observations and conclusions of the
inspectors.  The affidavits are a summary of what they would
testify to at a hearing.  Under the Commission's procedural
rules, "when a motion for summary decision is made and supported
as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleadings, but his response,
by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for a
hearing."  29 C.F.R. � 2700.67(c).  Under rule 2700.10, a party
has ten days to respond to a motion.  Five days are automatically
added to the response time when service is by mail, as it was in
this case.  29 C.F.R. � 2700.8.  Thus, Respondent has 15 days to
file its response to the Secretary's motion for summary decision.

     On November 1, 2000, I issued an order setting this case for
hearing on January 17, 2001.  Because the Secretary did not file
and serve her motion for summary decision until January 3, 2001,
Respondent's reply is not due until January 18, 2001.  Thus, by
filing this motion, the Secretary is indirectly asking that I
cancel the hearing.  Under 29 C.F.R. � 2700.67(a), motions for
summary decision must be filed at least 10 days prior to the
start of the hearing.  Although the Secretary complied with this
minimum requirement, I do not believe that she complied with the
spirit of the Commission's procedural rules.   A party should not
be permitted to file a motion for summary decision 14 days before
a scheduled hearing so as to require the cancellation of the
hearing, at least where the motion simply sets forth the party's
evidence to be presented at the hearing.  The Secretary's motion
does not attempt to narrow or focus the issues.  It does not
raise issues that are particularly amenable to resolution through
summary proceedings.

     Granting the Secretary's motion would not "secure the just,
speedy and inexpensive determination" of the issues in this case.
29 C.F.R. � 2700.1(c).   If I canceled the hearing to allow
Respondent the opportunity to reply to the Secretary's motion, it
is foreseeable that Respondent will respond with an affidavit
that challenges some of the material facts set forth by the
Secretary.  I would then have to deny the motion and reschedule
the hearing for a later date.  Consequently, I deny this portion
of the Secretary's motion as well.

     For the reasons set forth above, the Secretary's motion for
summary decision is DENIED and Respondent's motion to strike the
Secretary's motion is GRANTED.  Unless the parties settle this
case, the hearing will proceed as scheduled on January 17, 2001.
The exact courtroom in which the hearing will be held has been
changed.  The hearing will be in Courtroom 815 on the 8th Floor
of the United States Courthouse, 1010 Fifth Avenue, Seattle.  The
hearing will commence at 9:00 a.m.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:


Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA  98101-3212
(Fax and First Class Mail)

Richard M. Slagle, Esq., Slagle, Morgan & Ellsworth, 1000 Second
Avenue, Suite 1580, Seattle, WA 98104-1046  (Fax and First Class
Mail)


RWM