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[DOCID: f:wv200241o1.wais]

 
BGS CONSTRUCTION, INC.
Docket No. WEVA 2002-41
May 3, 2002


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES

                      2 Skyline, Suite 1000
                        5203 Leesburg Pike
                   Falls Church, Virginia 22041

                           May 3, 2002


SECRETARY OF LABOR,            : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH      :
   ADMINISTRATION (MSHA),      : Docket No. WEVA 2002-41
               Petitioner      : A.C. No. 46-01968-03505 ZAG
          v.                   :
                               :
BGS CONSTRUCTION, INC.,        : Blacksville No. 2
               Respondent,     :


                 ORDER DENYING MOTION TO DISMISS
                               AND
                         PREHEARING ORDER

     This case is before under section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. з 815.  The Respondent has moved to
dismiss the case claiming that the Secretary did not notify it of the
proposed civil penalty within a reasonable time as required by section
105(a) of the Act, 30 U.S.C. з 815(a).  The Secretary opposes the
motion.  For the reasons set forth below, the motion is denied.

     The two citations at issue in this case, alleging violations
involving the death of a miner, were issued on September 15, 2000.
The Mine Safety and Health Administration's (MSHA) investigation
report was issued on November 9, 2000.  The notice of the proposed
assessment for the citations was mailed to the company on January 17,
2002.  Thus, 14 months and eight days elapsed between the completion
of the investigation and notification of the operator of the proposed
penalty.

     Section 105(a) provides that: "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 . . . ."  With regard to whether a civil penalty has
been proposed within a "reasonable time," the Commission has furnished
the following guidance:

               Section 105(a) does not establish a limitations period
          within which the Secretary must issue penalty proposals.
          See Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2092-93
          (October 1993), aff'd 57 F.3d 982 (10th Cir. 1995); Salt ake
          County Rd. Dept., 3 FMSHRC 1714 (July 1981); and Medicine
          Bow Coal Co., 4 FMSHRC 882 (May 1982).  In commenting on the
          Secretary's statutory responsibility to act "within a
          reasonable time," the key Senate Committee that drafted the
          bill enacted as the Mine Act observed that "there may be
          circumstances, although rare, when prompt proposal of a
          penalty may not be possible, and the Committee does not
          expect that the failure to propose a penalty with promptness
          shall vitiate any proposed penalty proceeding."  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).  Accordingly,
          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).

     The Secretary asserts that the reason for the delay in this case
was that:

          [T]he Office of Assessments had a large case load and was
          understaffed during the relevant time period.  During that
          period, four persons were responsible for processing over
          2,500 citations and orders that were considered for special
          assessment.  Two of those individuals were not in the office
          for extended periods of time.

(Sec. Resp. at 3.)

     In Steel Branch, the Commission took official notice that the
Secretary had an unusually high case load in 1992 and accepted that as
an adequate reason for the delay, even though the "Secretary ha[d] not
offered any explanation for his delay."  Id.  Consequently, keeping in
mind Congress' expectation that failure to propose a penalty with
promptness will not vitiate any proposed penalty proceeding, I find
that the Secretary has provided an adequate explanation for the delay.

     Turning next to the issue of prejudice to the operator, the
company asserts that its "Safety Director, who was at the site and
likely to testify on issues in the case, left the company in December
2001 and all BGS work at the Blacksville plant has ceased.  Further,
trial of this case would require witnesses to testify as to events
almost two years old."  (Resp. Mot. at 6.)  These suppositions do not
demonstrate actual prejudice.  Although the Safety Director may have
left the company, there is no indication that he would not be
available for deposition or trial.  In addition, the fact that events
are almost two years old is not an unusual occurrence in these cases
and has the same effect on both sides.  Furthermore, since the company
has been aware of the factual allegations in this case since September
15, 2000, there is no reason that the Safety Director's testimony as
well as the testimony of any other employees could not have been
recorded to refresh recollections before trial.

     Accordingly, an adequate explanation having been provided for the
delay by the Secretary and the Respondent having failed to demonstrate
actual prejudice, the Motion to Dismiss is DENIED.

                         Prehearing Order

     In accordance with the provisions of section 105(d) of the Act,
30 U.S.C. з 815(d), the above proceeding will be called for hearing on
the merits at a time and place to be designated in a subsequent
notice.  Prior to setting the case for hearing, the parties are
directed to confer for the purpose of discussing settlement.  If a
settlement is reached, a motion for its approval shall be filed by the
Secretary of Labor no later than May 24, 2002.

     If settlement is not agreed upon, counsel for the Secretary shall
initiate a telephone conference call with the Respondent's
representative and the judge for the purpose of setting a hearing
date.  The conference call may be made at any time convenient to the
parties, but not later than May 31, 2002.

     Procedural motions filed in this case shall comply with
Commission Rule 10(c), 29 C.F.R. з 2700.10(c), which requires that
"the moving party shall confer or make reasonable efforts to confer
with the other parties and shall state in the motion if any other
party opposes or does not oppose the motion."

     Discovery requests made pursuant to Commission Rules 56, 57 and
58, 29 C.F.R. зз 2700.56, 2700.57 and 2700.58, responses to discovery
requests and depositions should not be filed with the judge.  However,
copies of such requests or responses shall accompany any motion to
compel or for other relief regarding discovery matters.


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


Distribution: (Certified Mail)

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209

Mark E. Heath, Esq., Heenan, Althen & Roles, LLP, BB & T Square, P.O.
Box 2549, Charleson, WV 25329

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