.
CEDAR CREEK QUARRIES, INC.
August 8, 1995
WEST 94-637-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            August 8, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 94-637-M
               Petitioner       :  A. C. No. 35-03123-05514
          v.                    :
                                :  Cedar Creek Quarry
CEDAR CREEK QUARRIES, INC.,     :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 95-306-M
               Petitioner       :  A. C. No. 35-03123-05516 A
          v.                    :
                                :  Cedar Creek Quarry
ROBERT G. WIENERT, Employed by, :
  CEDAR CREEK QUARRIES, INC.,   :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 95-307-M
               Petitioner       :  A. C. No. 35-03123-05517 A
          v.                    :
                                :  Cedar Creek Quarry
DENNIS McCASLIN, Employed by,   :
  CEDAR CREEK QUARRIES, INC.,   :
               Respondent       :

                   ORDER DENYING MOTIONS TO DISMISS
                        ORDER OF CONSOLIDATION
                         ORDER OF CONTINUANCE

Before:  Judge Hodgdon

     These cases are before me on petitions for civil penalty
pursuant to Sections 105(d) and 110(c) of  the  Federal  Mine  
Safety and Health Act of 1977, 30 U.S.C. �� 815(d) and 820(c).
Respondents Robert G. Wienert and Dennis  McCaslin have moved
to dismiss the petitions against them. The  Secretary opposes
the  motions.   In  addition,  the  Secretary  has  moved  to  
consolidate these cases for hearing and to continue the August
8, 1995, hearing date. The Respondents oppose  a  continuance.
For the reasons set forth below, the motions to  dismiss  are 
denied, the cases are consolidated for hearing and the hearing
is continued.

                          Motions to Dismiss

     The Secretary has filed petitions seeking civil penalties
under Section 110(c) of the Act against Wienert, President  of
Cedar Creek Quarries, Inc., and McCaslin, a  foreman  employed 
by Cedar Creek  Quarries,  Inc.,  for  knowingly  authorizing, 
ordering or carrying out, as officers or agents of Cedar Creek 
Quarries, Inc. several violations of the Secretary's mandatory
health and safety standards. The violations are all alleged to
have  occurred  on  December  7, 1993.  The  Respondents  were  
officially notified  that  the  Secretary  was  assessing such
penalties on March 17, 1995.  After  Respondents  stated  that
the wished to contest the penalties, the instant petitions were
filed  on  May  10, 1995.   The  Respondents  argue  that  the
approximately  15  month  time  period  between the violations
and notification of liability constitutes an unreasonable delay
which requires that the petitions be dismissed.[1]

     The  Respondents  assert that there are four reasons for
dismissing the cases. The first is  the "concept  of  laches"
because the delay resulted in prejudice to  the  Respondents' 
bility to defend themselves. The Second is that Section 110(c)
violates the equal protection and due process requirements of 
the Fifth Amendment by making officers, directors or agents of
corporate operators liable for knowing violations of the  Act
or regulations, but not  agents  of  noncorporate  operators. 
Third, Respondents maintain  that  giving  individuals  "less 
notice and  opportunity  for  administrative  resolution"  of 
violations than operators who are immediately given a citation
or order also violates the equal protection and  due  process 
guarantees  of  the  Fifth  Amendment.  Finally,  Respondents 
contend that Section 56.12001 of the Regulations, 30  C.F.R. 
� 56.12001, is so vague as to be fundamentally unfair. None
of these arguments is persuasive.

     The  "Doctrine  of laches" is an equitable concept which
holds that "neglect to assert a right or claim which, taken 
together with lapse of time and other circumstances  causing 
prejudice to adverse party, operates as bar in court of equity."
Black's Law Dictionary 875 (6th ed. 1990). Since this is not a
court of equity, the Respondents advance that a similar concept
should apply in this case. In  their  view,  Judge  Melick's 
decision in Island Creek Coal Co., 15 FMSHRC 735(April 1993),
is precedent for such a theory.

     This argument, however, fails for two reasons. First, 
"[a]n unreviewed  decision  of  a Judge is not a precedent
binding upon the Commission." Commission Rule 72, 29 C.F.R.
� 2700.72. Secondly,  Judge  Melick's  decision  was  based
solely on the failure of the Secretary to file a petition for
assessment of penalty within 45 days of receipt of a timely
contest of a proposed penalty assessment  as  required  by 
Commission Rule 27(a), 29  C.F.R. � 2700.27(a) [now Rule 28,
29 C.F.R. � 2700.28]. Thus, he held that the Secretary had 
failed to file a timely request for an extension of time to 
file a petition, Island Creek at 737; that the Secretary had
failed to show "adequate cause" for the late filing, id. at
738;  and  that  the  Respondents  had  been  actually
prejudiced by this late filing, id. at 739.

     In the instant cases, there has been no violation of a
statutory deadline. Judge Melick's discussion of prejudice
suffered  by the  respondents as  a result  of the  time lag 
between the violations and their notification that they were
being a ssessed  a  penalty  under  Section  110(c)  was  to  
demonstrate that the respondents had  been  prejudiced as  a  
result of the Secretary's untimely filing under the rule. It
did not establish that a delay in bringing a Section 110(c) 
case is itself a ground  for  dismissing such petitions.

     Furthermore, in  these cases the Respondents have not 
shown that they have suffered actual prejudice. The alleged
inability to  locate  the  electricians  who  installed  and 
dismantled the electrical equipment in question does not mean
that there is no way to defend against  the  orders.  As  the
Secretary has pointed out, there are other means of defense, 
such as  finding  equipment with the same specifications,
using testimony  from  the equipment manufacturer or using 
wiring diagrams and  drawings furnished by the manufacturer.

     Next, Respondents have not been denied equal protection or
due process under the Fifth Amendment.  At  least  two  federal 
circuits, as well as the Commission,  have  held  that  Section 
110(c) is not  a  denial  of equal protection.  U.S. v. Jones,
735 F.2d 785 (4th Cir. 1984), cert. denied, 469 U.S. 918 (1984); 
Richardson v. Sec. of Labor, 689  F.2d 632 (6th Cir. 1982), cert.
denied,  461  U.S.  928 (1983).

     Nor does the fact that the orders were immediately served
on the mine operator but the Respondents were  not notified of 
their liability until 15 months later violate due  process  or
equal protection. Interestingly, the orders  in this case were 
served on Mr. McCaslin, so he did have notice of the violations
even if he did not know at the time that he might be considered
personally liable. Similarly, Mr. Wienert, as president of the
company, must have become aware of the orders  shortly  after
their issue. In  addition,  on  April  6,  1994,  and  shortly 
thereafter, both respondents were interviewed by the special 
investigator and should have been aware at that time of their
potential liability.

     Finally, the regulation is not void for vagueness. Section
56.12001, 30 C.F.R. � 56.12001, provides that "[c]ircuits shall
be protected against excessive overload  by  fuses  or  circuit 
breakers of the correct  type  and  capacity."  The  fact  that 
"correct type and capacity" is not defined  does not  mean that 
the regulation  is  vague since it is clear from the regulation
that fuses and circuit breakers of the correct type and capacity
are those which protect against excessive overload.

     Furthermore, even if this were not apparent, the Commission
has held that  broadly worded  regulations must be evaluated "in
light of what a 'reasonably  prudent  person, familiar  with the 
mining industry and the protective purpose of the standard, would
have provided in order to  meet the  protection intended  by the
standard.'" Ideal Cement Co., 12 FMSHRC 2409, 2415 (November 1990)
(citations omitted). Therefore, at the very least, this would be 
a matter of proof at the hearing.

     Having  considered the  contentions of the  parties as set 
forth in their briefs, the Respondents' motions to dismiss are
DENIED. That being the case, Docket Nos. WEST 95-306-M and WEST 
95-307-M  are  CONSOLIDATED  for  hearing with  Docket No. WEST 
94-637-M.

                        Motion for Continuance

     Hearing in Docket No. WEST 94-637-M is presently scheduled
for August  8, 1995, in  Newport,  Oregon.  The  Secretary  has 
requested that the hearing  be continued  because his  two main 
witnesses have  medical problems which would prevent them from 
being present to testify on August 8. Citing the passage of time
set out in the motions  to  dismiss, the Respondents oppose the
continuance.

     While I am sensitive to the Respondents' concerns, the
delays in  these  cases  have  not  been  inordinate, or as
indicated above, of a nature to justify  the extreme remedy 
of dismissal. In addition, the request for continuance by the 
Secretary  is  due  to  circumstances  beyond  his  and  his  
witnesses control. Nor is the  request  for  a  three  month  
continuance excessive in view of the fact  that one  of the 
witnesses has just had open heart surgery. Therefore, I will
grant the continuance.

     Accordingly, the motion for  continuance is GRANTED. The
hearing  in  the  above-captioned  cases  is  CONTINUED  until
November 14, 1995, at 9:00 AM, in Newport, Oregon. A specific 
hearing site will be designated in a subsequent order.

     In preparation for the hearing, the parties are directed 
to complete the following on or before November 3, 1995:

     (1)  attempt to stipulate as to all relevant matters
     that are  not  in  substantial dispute; (2) exchange
     written statements of  the  issues as they see them;
     (3) exchange lists of exhibits  and,  at the request
     of  a  party,  produce  exhibits for inspection  and
     copying; (4) stipulate as  to  those  exhibits which
     may  be admitted in evidence without objection,  and
     as  to   others  indicate  whether  the  exhibit  is
     accepted  as  authentic;  and  (5)  except  for  the
     Secretary's  miner witnesses, exchange witness lists
     with a
     summary of the  testimony expected from each witness
     (counsel for the  Secretary  shall furnish the names
     and  expected  testimony  of  miner   witnesses   on
     November 10).

     The  parties are further ORDERED to file with the judge,
so that it is received on o r  before  November  10,  1995, a  
preliminary statement setting forth: (1) the parties' statement
of the issues; (b) lists of exhibits  and  witnesses  with  a 
summary of the expected testimony  for  each witness; and (c)
any stipulations.

     The parties should mark their exhibits, in the order that
they expect to offer them, before the hearing. The Secretary's 
exhibits  should  be marked  "Gov't. Ex. 1" et  seq.  and  the
respondents' exhibits should be marked "Resp. Ex.  A"  et seq.
If both parties wish to offer the  same  exhibit,  it  may  be 
marked as a joint exhibit. Exhibits consisting of more than one
page should have the pages numbered.


                                   T. Todd Hodgdon
                                   Administrative Law Judge
                                   (703) 756-4570


Distribution:

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite  945, Seattle, WA 98101 
(Certified Mail)

Kurt Carstens, Esq., P.O. Box 1730, Newport, OR  97365
(Certified Mail)

/lsb


**FOOTNOTES**

     [1]: The Respondents also allege a 31  month  delay from the
time  the  company  was cited for the same type of violations  on
July  22,  1992.   While  the  July  22,  1992,  violations  were
mentioned in the orders given to the company on December 7, 1993,
and may have some bearing  on  the  Respondents'  liability under
Section  110(c)  for the December 7 violations, the Secretary  is
not seeking civil penalties against the Respondents under Section
110(c)  for  the July  22  violations.   Consequently,  the  only
pertinent delay  for  consideration in connection with the motion
to dismiss is the 15 month delay.