.
WHITE OAK MINING AND CONSTRUCTION, INC.
WEST 95-552
May 8, 1998


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           May 8, 1998

SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No.  WEST 95-552
                Petitioner         :  A.C. No. 42-01280-03623
          v.                       :
                                   :  White Oak Mine No.  2
WHITE OAK MINING AND               :
  CONSTRUCTION, INC.,              :
                Respondent         :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. WEST 98-63
                Petitioner         :  A.C. No. 42-01280-03678 A
          v.                       :
                                   :  Docket No. WEST 98-114
VAL J. LYNCH, & SHANE HANSEN,      :  A.C. No. 42-01280-03680-A
  Employed by WHITE OAK MINING AND :
  CONSTRUCTION, INC.,              :  White Oak Mine No. 2
                Respondent         :

                ORDER DENYING MOTIONS TO DISMISS

     These cases are before me pursuant to sections 105(a) and
110(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. �� 815(a) and 820(c).  Respondents Lynch and Hansen have
moved to dismiss the cases against them on the grounds that there
was an unreasonable delay between the time the underlying orders
in these cases were issued to the operator and the time they were
notified that the Secretary was assessing penalties against them
under section 110(c).  The Secretary opposes the motion.  For the
reasons set forth below, the motion is denied.

     The following is the chronology of events in these cases:

          1.  March 27, 1995, Order No. 3415856 issued to White
          Oak.

          2.  March 30, 1995, Order Nos. 3415858 and 3415859
          issued to White Oak.

          3.  March 31, 1995, Order No. 3415825 issued to White
          Oak.

          4.  June 13, 1995, a section 110(c) special
          investigation involving the facts in the above orders
          assigned to MSHA Special Investigator, Bruce Andrews.

          5.  June 15, 1995, Andrews receives case file.

          6.  August 24, 1995, Andrews begins working on
          investigation.

          7.  August 24, 1995 - July 11, 1996, Andrews conducts
          investigation, including interviewing 17 miners and
          inspectors.

               a.  Lynch interviewed September 19, 1995.

               b.  Hansen interviewed October 31, 1995.

          8.  March 21, 1996, initial case file received by MSHA
          Technical Compliance and Investigative Division (TCID)
          in Arlington, VA, headquarters.  Respondents notified
          of right to request conferences on the allegations.

          9.  August 6, 1996, conferences held between MSHA and
          Respondents.

          10.  March 13, 1997, case file received by TCID, with
          additional investigative material obtained as the
          result of further investigation conducted, in part,
          because of information received at the conferences.
          TCID reviewed the file and then sent it with
          recommendations to the Office of the Solicitor for
          legal review.

          11.  August 14, 1997, TCID sent request to MSHA Office
          of Assessments for civil penalty assessments against
          individual agents.

          12.  November 24, 1997, proposed assessments mailed to
          Hansen and Lynch.

          13.  December 12, 1997, Lynch advises MSHA he wishes
          to contest the proposed assessment.

          14.  January 5, 1998, Hansen advises MSHA he wishes to
          contest the proposed assessment.

          15.  January 9, 1998, Petition for Assessment of Civil
          Penalty filed against Lynch.

          16.  January 19, 1998, Petition for Assessment of
          Civil Penalty filed against Hansen.

     The Respondents base their motion on Doyal Morgan et al, 20
FMSHRC 38 (Chief Judge Merlin, January 1998).  In that case,
Judge Merlin held that:  "Because the record indicates no
difficulties in either investigation or evaluation and because no
acceptable reason has been given to explain the delay, I find
that adequate cause does not exist to justify the 22 months MSHA
and the Office of the Solicitor took to complete action and issue
the notices of proposed assessments."  Id. at 42.  Accordingly,
he dismissed the 110(c) proceedings against the Respondents.
However, this decision, while instructive, has no precedential
value under the Commission's Rules, 29 C.F.R. � 2700.72, and is
distinguishable from the instant cases on its facts.  In these
cases, the Secretary has explained the delay.

     There are no Commission cases dealing with the Secretary's
delay in notifying individuals of proposed penalties in 110(c)
proceedings.  However, in cases involving notification of the
operator under section 105(a), the Commission has held that "in
cases of delay in the Secretary's notification of proposed
penalties, we examine the same factors that we consider in the
closely related context of the Secretary's delay in filing his
penalty proposal with the Commission:  the reason for the delay
and whether the delay prejudiced the operator."  Steel Branch
Mining, 18 FMSHRC 6, 14 (January 1996).

     It is apparent in examining the chronology set out above
that, while the case is far from a model of efficiency, the
Secretary was proceeding with due diligence.  For instance, Bruce
Andrews was the only special investigator in the Price, Utah,
area when he was assigned the file on June 15, 1995, and he was
working on several section 105(c), 30 U.S.C. � 815(c),
investigations, which because of statutory time constraints take
precedence over all other special investigations.  Therefore, his
delay, until August 24, 1995, in beginning the investigation is
understandable.  In addition, this case was not the only one he
was working on during the period from August 1995 to March 1997.
He also worked on two other 110(c) investigations and five 105(c)
investigations throughout that period.

     In fact, while it is not the function of the Commission to
tell the Secretary how to conduct her investigations, or to
second guess the investigation every step of the way, it is
apparent that the only period of time in this case where the
delay might be questionable was between the conferences and the
submission of the final report to TCID.  Even there, the delay
was not so egregious as to require the harsh remedy of dismissal.
This is particularly true when the admonition of the key Senate
Committee that drafted the Act that "the Committee does not
expect that the failure to propose a penalty with promptness
shall vitiate any proposed penalty proceeding" is kept in mind.
S. Rep. No. 181, 95th Cong., 1st Sess. 34 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 622 (1978).

     Viewing the period of a time between the first citation and
the proposal of penalties as a whole, I conclude that the
Secretary has adequately explained the delay involved.  I agree
with Chief Judge Merlin, when he stated in a similar case that:

     [I]t must be borne in mind that both the investigation
and the various levels of internal review were necessary for a
proper evaluation of agent liability and a knowing violation.
The time used to evaluate the case could reasonably be viewed
as affording some assurance that resources of both the
individual and the government would not be wasted by the
bringing of an unworthy case.

James Lee Hancock, 17 FMSHRC 1671, 1674 (Chief Judge Merlin,
September 1995).

     Having found that any delay in the cases has been adequately
explained, the next issue is whether the Respondents have been
prejudiced.  The Respondents argue that Keith W. Smith "is unable
to testify due to injuries sustained in an automobile accident
earlier this year."  They also assert that they have been
prejudiced "by the loss of potential witnesses, [their] own
fading memory, the fading memories of potential witnesses and
loss or destruction of evidence."  I find that the Respondents
have not demonstrated prejudice in these cases.

     Turning first to the specific allegation of the loss of
testimony of Smith, I conclude that his loss has not been shown.
No offer has been provided as to what he is expected to testify.
No explanation has been given as to how his injuries would
prevent him from testifying.  Furthermore, nothing has been
presented to show how long he may be precluded, if he is
precluded, from testifying.  This is particularly significant in
view of the fact that no hearing has yet been scheduled.
Finally, the Respondents have not shown that Smith's testimony,
whatever it is, is the only source of the evidence they wish to
present.

     The allegations that memories fade, witnesses become
unavailable and evidence may be lost or destroyed do not
demonstrate actual prejudice.  The same allegations, which are
inherently true, could be made in any case.  They are not,
however, a basis for dismissal unless they have actually happened
and are determined to have a significant effect on the
presentation of the case.  The Respondents have not even alleged
that any of these have occurred, let alone that they will result
in an inability to defend the case.

     In conclusion, I find that the Secretary, having adequately
explained the delays in the case, notified the Respondents of the
proposed civil penalties within a reasonable time and that the
Respondents have not shown that they have incurred any actual
prejudice as a result of the delays.  Accordingly, the Motions to
Dismiss are DENIED


                                T. Todd Hodgdon
                                Administrative Law Judge
                                (703) 756-6213


Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Denise A. Dragoo, Esq., Lisa R. Petersen, Esq., Van Cott, Bagley,
Cornwall & McCarthy, P.C., 50 South Main Street, Suite 1600, P.O.
Box 45340, Salt Lake City, UT 84145-0340 (Certified Mail)

William K. Doran, Esq., Heenan Althen & Roles, 1110 Vermont
Avenue, N.W., Suite 400, Washington, DC 20005-3593 (Certified
Mail)

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