<DOC>
[DOCID: f:wv200221o.wais]

 
CONSOLIDATION COAL COMPANY
WEVA 2002-21
February 6, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                 1730 K STREET, N.W., Room 6003
                  WASHINGTON, D. C. 20006-3867
                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030


                        February 6, 2002

SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      : Docket No. WEVA 2002-21
               Petitioner     : A. C. No. 46-01968-04383
                              :
          v.                  :
                              :
CONSOLIDATION COAL COMPANY,   :
               Respondent     : Mine: Blacksville No. 2




                   ORDER ACCEPTING LATE FILING
                  ORDER TO RESPONDENT TO ANSWER

Before: Judge Barbour

     On January 28, 2002, the Commission received the Secretary
of Labor's Motion For Leave to File Out of Time, in the above
captioned case. The Secretary failed to timely file her penalty
petition.  In support of her motion, the Secretary asserts that
the Solicitor's Office received the present case, Docket No. 
WEVA 2002-21, on January 18, 2002 along with another case, 
Docket No. WEVA 2002-20.  Mot. at 1.  When Docket No. WEVA 
2002-20 was transferred to the Mine Safety and Health 
Administration's ("MSHA") District Three Office to be handled 
by a CLR, the documentation case was inadvertently transferred 
along with another case.  Id.  The assigned counsel, the 
Secretary further proffers, realized what happened on January 
24, 2002, and instructed the MSHA office to return the 
documentation via overnight mail.  Id. at 1-2.  In addition, 
the Secretary states that the case was further delayed because
MSHA did not receive the mail for an extended period-of-time 
due to the recent anthrax contamination in the U.S. Postal 
Service, and, thus, the processing of this case by the Office 
of Assessments was delayed. Id. at 2.  The Respondent does not 
object to this motion. Id.

     According to the date stamped on the notice of contest, 
MSHA received the operator's contest on November 29, 2002.  
Therefore, the Secretary should have filed her penalty petition 
on or before January 14, 2002.  The Secretary's Certificate of
Service shows that the penalty petition was filed on January 28,
2002, 14 days after the due date.

     Section 105(d) of the Mine Act states in pertinent part:
"[i]f, within 30 days of receipt thereof, an operator of a coal
or other mine notifies the Secretary that he intends to contest
the issuance or modification of an order issued under section
104, or citation or a notification of proposed assessment 
of penalty issued under subsection (a) or (b) of this 
section . . ., the Secretary shall immediately advise the 
Commission of such notification, and the Commission shall
afford an opportunity for a hearing ".  Further, 29 C.F.R. 
� 2700.28(a) states that, "within 45 days of receipt of a timely 
contest of a proposed penalty assessment, the Secretary shall 
file with the Commission a petition for assessment of penalty ". 
Moreover, the Commission has stated that "Rule [28] implements 
the meaning of `immediately' in section 105(d)".  Salt Lake Co. 
Road Dept., 3 FMSHRC 1714, 1715 (July 1981).  Thus, it is 
apparent that the purpose of Rule 28 is to effectuate swift 
enforcement.  Id.

     While the Secretary should adhere to the 45-day time 
limit, the Commission has made clear that neither the term 
"immediately" nor the time limit should be construed as a 
"procedural strait [jacket]".  Id. at 1716.  The Commission 
has further stated that the Secretary may request permission 
for late filing if the request is (1) based upon adequate 
cause, and (2) the operator has an opportunity to object to 
the late filing on the grounds of prejudice.[1]  Id.

     There are various  situations from which adequate cause 
may arise.  Clerical mishaps have been considered adequate 
cause for late filings. A Solicitor has been permitted to file 
a penalty petition out of time because the file for the case 
had been inadvertently misplaced.  Jerry Hudgeons, 22 FMSHRC 
272, 274 (Feb. 2000).  The Commission has held that a rise in
caseload coupled with a lack of personnel support has been 
considered adequate cause.  3 FMSHRC 1714; Medicine Bow Coal 
Co., 4 FMSHRC 882 (May 1982).  A late-filed penalty petition 
has also been accepted where the delay was due to the adoption
by MSHA of a new system for handling mine safety cases. 
Roberts Brothers Coal Co., 17 FMSHRC 1103 (June 1995).  In 
addition, a government shutdown has been considered adequate 
for a late filing.  Roger Christiansen, 18 FMSHRC 1693 
(Sept. 1996).

     Adequate cause is based upon the reasons offered and the
extent of the delay. 22 FMSHRC at 273.  I conclude that the
clerical error and the unforeseen anthrax contamination in the
postal service constitute adequate cause for filing the penalty
petition 14 days out of time.

     In addition, as the Respondent has not alleged any 
prejudice from the delay, I conclude that the short delay is
not prejudicial.

     In light of the foregoing, it is ORDERED that the
Secretary's late filed penalty petition is ACCEPTED.

     It is further ORDERED that the Respondent file an answer 
to the penalty petition within 30 days of the date of this 
order.


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Robert S. Wilson, Esquire, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington, 
VA 22203

Robert M. Vukas, Esquire, Consol Energy Inc., 1800 Washington
Road, Pittsburgh, PA 15241


/wd


**FOOTNOTES**

     [1]:In footnote one of the Secretary's motion, the Secretary
disagrees  with the Commission's position that the Secretary must
establish adequate  cause apart from any consideration of whether
the operator is prejudiced  by  the  delay.  Commission decisions
are  binding  precedent in Mine Safety cases,  however,  and  the
Commission has  clearly stated 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."  Rhone-Poulenc  of  Wyoming  Co.,  15  FMSHRC  2089 (Oct.
1993),  aff'd,  57  F.3rd  982  (10th Cir. 1995)(emphasis added).
Therefore,  as binding precedent,  Commission  Judges  must  make
separate determinations  for  adequate cause and prejudice to the
operator before they accept late filings.