<DOC>
[DOCID: f:yk200038o.wais]
TILTON CAPALDI INC.
September 8, 2000
YORK 2000-38-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 8, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 2000-38-M
Petitioner : A.C. No. 37-00002-05516
v. :
: Cranston Quarry
TILTON CAPALDI INC. :
Respondent :
ORDER DENYING MOTION TO DISMISS
This case is before me on a petition for assessment of civil
penalties under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the "Act"). 30 U.S.C. � 815(d). Respondent
has moved to dismiss the petition because it was not filed
timely. For the reasons set forth below, the motion is denied.
Facts
MSHA conducted inspections of Respondent's mine in August
and October, 1999. Eleven citations were issued in August and an
additional six citations were issued in October. On September 9,
1999, Respondent initiated Contest Proceedings as to each of the
August citations. Commission Docket No.'s YORK 99-69 through 99-
79. On October 15, 1999, the Secretary, with Respondent's
consent, moved to late file answers to the contest proceedings
and to stay proceedings pending the assessment of civil penalties
for the eleven citations. By Order dated, October 19, 1999, the
motion to stay was granted. On October 15, 1999, MSHA assessed
civil penalties for eight of those citations, and a petition to
assess civil penalties was filed on December 23, 1999, Docket No.
YORK 2000-12-M. By Order dated February 15, 2000, proceedings in
that case were stayed pending the filing of a petition for civil
penalties in the remaining three August 1999 citations.
Penalties were assessed by MSHA for the remaining three
August citations on January 27, 2000. However, included in the
assessment were the six citations issued during the October,
1999, inspection. Respondent contested that assessment on
February 25, 2000, and requested that the three August citations
be consolidated with the other pending cases and that the six
October citations be referred to the Alternative Case Resolution
Initiative (ACRI). The Solicitor attempted to accommodate that
request.
Meanwhile, in the absence of any definitive commitment by
the Secretary as to when penalty proceedings would be filed with
respect to the remaining three August citations, the undersigned,
by Order dated May 3, 2000, lifted the stay of proceedings on the
eleven contest cases and the related penalty docket, and
scheduled a hearing in those cases for September 27, 2000.[1]
The notice indicated an intention to also hear the penalty
proceedings for the remaining three citations in the event that
they were filed prior to the hearing date.
In response, the Secretary initiated penalty proceedings for
the citations included in the January 27, 2000 assessment. The
Secretary attempted to split those citations into two groups, the
August and October citations, by filing a petition for only the
six October 1999 citations in this assigned docket number,
intending to file a separate petition for the three August 1999
citations under the pending penalty proceeding docket number.
When informed by Commission staff that that could not be done, a
petition as to all nine of the citations concluded in the January
27, 2000 assessment was filed. The filings occurred on May 15
and 17, 2000, respectively.
Respondent moved to dismiss the petition asserting that its
filing was untimely by over a month and that it had suffered
prejudice as a result.[2] Petitioner opposed the motion arguing
that there was adequate cause for the untimely filing and that no
prejudice was demonstrated by Respondent. Petitioner relies upon
an affidavit by counsel describing the circumstances under which
the petition was filed late.
Applicable Law
The Commission has made clear that the time limits for
filing a penalty petition are not to be lightly regarded by the
Secretary and that adequate cause must be shown to justify a late
filing. Even if adequate cause is shown, a motion to dismiss may
be granted if the delay has resulted in prejudice to Respondent.
Rhone-Polenc of Wyoming Co., 15 FMSHRC 2089 (October 1993); Salt
Lake Co. Road Dept., 3 FMSHRC 1714 (July 1981). In Salt Lake,
the Commission was critical of the Secretary's reliance on high
case loads and limited clerical help as a justification for
untimely filing and also admonished the Secretary to proceed with
a timely motion to extend time when extra time is legitimately
needed.[3]
**FOOTNOTES**
[1] The Order stated, in pertinent part: "Three citations
at issue in the contest proceedings apparently have yet to be
made the subject of a petition for civil penalties. Six months
should have been adequate time to allow the filing of civil
penalty proceedings with respect to all of the citations at issue
and there is no compelling justification for extending the stay
further. If civil penalty proceedings are filed with respect to
those three citations, they will be consolidated for purposes of
the hearing."
[2] Respondent's contest of the proposed assessments was
hand delivered on February 25, 2000. Commission Rule 28(a), 29
C.F.R. � 2700.28(a), specifies that a petition for assessment of
civil penalties shall be filed within 45 days of receipt of a
timely contest, i.e., here, by April 10, 2000.
[3] There, as here, the Secretary had not filed a motion
for extension of time prior to the expiration of the time limit,
as required by Commission Rule 9(a). 29 C.F.R. � 2700.9(a).
Nevertheless, the Commission reversed the dismissal that had
been entered in that case, holding that "effectuation of the Mine
Act's substantive scheme, in furtherance of the public interest"
precluded automatic dismissal of an untimely filed petition. Id.
at 1716. It established the "adequate cause" test for justifying
a late filing and recognized that "procedural fairness" could
dictate dismissal where an operator could establish that it had
suffered prejudice as a result of any delay. The Commission
concluded its analysis with the following language: "Allowing
* * * an objection [based on prejudice] comports with the
basic principle of administrative law that substantive
agency proceedings, and effectuation of a statute's purpose, are
not to be overturned because of a procedural error, absent a
showing of prejudice." (citations omitted). Id.
On the facts of this case, I find that the Secretary has
fulfilled, but just barely, her burden of showing adequate cause
for the delay. Because Respondent makes no showing of prejudice
attributable to the delay, merely noting that more time will have
elapsed between issuance of the citations and resolution of the
penalty cases, the motion to dismiss will be denied.
For reasons unknown to at least Respondent and the
undersigned, MSHA determined to split the assessment of penalties
for the eleven citations issued during the August 1999
inspection. Eight were done in due course and a petition for
assessment of penalties was timely filed, Docket No.
YORK 2000-12-M. Assessment of the remaining three citations did
not occur until January 27, 2000, which probably would not have
had any detrimental consequences, except that MSHA also included
in that assessment the six, essentially unrelated, citations
issued during the October 1999 inspection. In contesting the
proposed assessments, Respondent requested, quite reasonably,
that the three August citations be consolidated with the
remaining August citations and that the October citations be
diverted into the ACRI program. The Secretary agreed with that
proposal and attempted to effectuate it, ultimately finding that
it was difficult to do.
The Secretary's explanation of the difficulty, however, is
somewhat "thin". While the opposition and affidavit list
numerous questions that needed to be answered, there is precious
little detail as to particular actions required to obtain answers
and when (or even if) those actions were taken. The delay as to
the August citations ended, for all practical purposes, on May 3,
2000, when the stay on the contest proceedings and the penalty
proceedings on the other eight August citations was lifted and a
hearing date was set. It is somewhat ironic that the Secretary
should benefit from this action because it was born partially out
of frustration with the delay in assessment of penalties for the
three outstanding citations and the inability to obtain
meaningful information about the processing of the assessments
despite a requirement for periodic status reports incorporated
into the stay order.
On the whole, however, the complication of the combined
assessments and what appear to be good faith efforts to
accommodate the reasonable request of Respondent for diversion of
the October citations to the ACRI program rise, but just barely,
to the level of adequate cause even though Respondent bears no
responsibility for that initial assessment processing anomaly.
It is also relevant that Respondent assented to the initial stay
of the contest proceedings, and noted no objection to the
extension of the stay to Docket No. YORK 2000-12. If Respondent
had a strong interest in more expeditions litigation of the
August citations, it could have taken steps to achieve that
objective. The finding of adequate cause does not excuse the
conduct of the Solicitor's office. While the attempts to deal
with the complications resulted in delay, there is no excuse for
failing to monitor the approach of the filing deadline or for
disregarding the admonition of the Commission in Salt Lake, to
"proceed by timely extension motion when extra time is
legitimately needed."
The October citations stand on a slightly different footing.
There were no previous cases filed with the Commission as to
those citations and the lifting of the stay in the other cases
did not end the delay as to them. Considered alone, the motion as
to those citations presents a more straightforward argument for
dismissal based upon delay in filing. However, the original
complicating factor that prompted the delay as to the August
citations had the same impact on the October citations. On the
whole, I also find adequate cause for the delay in filing as to
the October citations. If the parties still desire to attempt to
resolve those citations through the ACRI program, a stay of
proceedings as to those citations could be requested.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Margaret S. Lopez, Esq., Heenan, Althen & Roles, 1110 Vermont
Avenue, N.W., Suite 400, Washington, D.C. 20005 (Certified Mail)
Kathryn A. Joyce, Esq., Office of the Solicitor, U. S. Department
of Labor, John F. Kennedy Federal Building, Room E375, Government
Center, Boston, MA 02203 (Certified Mail)
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