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[DOCID: f:yk9824.wais]
SWENSON GRANITE COMPANY, LLC
August 11, 1998
YORK 98-24-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON D.C. 20006-3868
August 11, 1998
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 98-24-M
Petitioner : A. C. No. 27-00083-05526
:
v. : Swenson Gray Quarry
:
SWENSON GRANITE COMPANY, LLC, :
Respondent :
ORDER OF DISMISSAL
Before: Judge Merlin
This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor under section 105(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. �
815(a) .
The operator seeks to have the petition dismissed on the
ground that the Secretary failed to timely file the petition for
the assessment of a civil penalty.
This case involves an order that was issued on August 7,
1997, under sections 107(a) and 104(a) of the Act, 30 U.S.C. ��
817(a) and 814(a), for an alleged violation of the Act and
mandatory standards.
On March 2, 1998, the Secretary issued a notice of proposed
civil penalty assessment. The operator timely contested this
assessment by filing a request for hearing within 30 days. The
request was received on March 23, 1998. 29 C.F.R. � 2700.26.
The Secretary had 45 days after receipt of the contest to file
the penalty petition. 29 C.F.R. � 2700.28. Therefore, the
petition was due on May 7, 1998.
The Solicitor failed to file the penalty petition within 45
days. Indeed, the Solicitor did nothing until June 18, 1998,
when the Commission's Docket Office contacted him to inquire
about the penalty petition. The Solicitor mailed the petition on
the same day and the petition was received by the Commission on
June 22, 1998. The Solicitor did not file a motion seeking leave
to file the petition out of time.
On July 14, 1998, the operator filed a motion to dismiss
because the Solicitor failed to file the penalty petition within
45 days. The operator asserts that the Secretary has failed to
demonstrate adequate cause and that it has been prejudiced by
the delay.
On July 23, 1998, the Solicitor filed an opposition to the
motion to dismiss. The Solicitor represents the following: on
April 8, 1998, the case was received in the Boston Regional
Office and was assigned to him while he was on vacation; on April
13 he returned from vacation, but worked on other matters for the
next two weeks; on April 27 he reviewed the file in this case and
determined that it should be referred to MSHA under MSHA's ACRI
(Alternate Case Resolution Initiative) Program; on April 28 he
forwarded the case to MSHA's Northeast District Office;
sometime in May 1998, the District Office notified him that it
would not handle the case.
The Commission permits late filing of penalty petitions
where the Secretary demonstrates adequate cause for the delay and
where the respondent fails to show prejudice from the delay. Salt
Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981).
The Secretary must establish good 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. 1989).
Late filings have been permitted where there has been a rise
in the mine safety caseload together with a lack of support
personnel. Salt Lake, supra; Medicine Bow Coal Co., 4 FMSHRC 882
(May 1982). See also Wharf Resources USA Incorporated, 14 FMSHRC
1964 (November 1992); Fisher Sand and Gravel Company, 14 FMSHRC
1968 (November 1992). Out of time filing of the penalty petition
was allowed when the delay was due to the adoption by MSHA of a
new system for handling mine safety cases. Roberts Brothers Coal
Company, 17 FMSHRC 1103 (June 1995). So too, late filing was
permitted when it was due to a mistake in the computation of the
45 days by a Conference and Litigation Representative (CLR) when
the CLR program was new. Lone Mountain Processing Incorporated,
17 FMSHRC 839 (May 1995); Austin Powder Company, 17 FMSHRC 841
(May 1995); Ibold Incorporated, 17 FMSHRC 843 (May 1995). An
extraordinary circumstance like a government shutdown also has
been recognized as adequate reason for late filing. Secretary of
Labor v. Roger Chistensen,
18 FMSHRC 1693 (August 1996).
In this case the only heavy caseload the Solicitor relies
upon is his own. He sets forth in detail what he was doing in
the two weeks after he received the case. This type of excuse is
far different from those set forth above. Here the case was at
all times in the hands of an experienced Solicitor who must be
held responsible to handle his assignments properly. If such an
excuse were accepted here, every Solicitor could justify
tardiness by explaining he was busy with something else. Since
all Solicitors are almost always, if not always, busy, the time
requirements of the Act and regulations would be rendered
meaningless. More importantly, despite the two week period when
he was busy elsewhere, there was still time for the Solicitor to
file a timely petition. Late filing occurred because the
Solicitor closed the case when he sent the file to MSHA for
handling under ACRI. The Solicitor knew, or should have known,
that sending the case to MSHA did not excuse him from filing
required pleadings. I reject the Solicitor's assertion it was
inevitable that under ACRI a situation would arise where MSHA and
the Solicitor would slip up because each thought the other was
handling a case. The fault here lies with the Solicitor who
should not have closed the case. Had the Commission's Docket
Office not telephoned the Solicitor, one can only speculate when
the petition would have been forthcoming and when he did file,
the Solicitor did not seek permission to file out of time. These
circumstances do not constitute adequate cause to justify the
late filing.
Because there has been no showing of adequate cause, it is
not necessary to reach the issue of prejudice.
In light of the foregoing, the operator's motion to dismiss
is GRANTED.
It is ORDERED that this case is DISMISSED.
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
David L. Baskin, Esq., Office of the Solicitor, U. S. Department
of Labor, Room E-375, John F. Kennedy Federal Building, Boston,
MA 02203
Henry Chajet, Esq., David J. Farber, Esq., Michael T. Palmer,
Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, DC
20037
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