<DOC>
[DOCID: f:ct2001379o.wais]

 
CACTUS CANYON QUARRIES, INCORPORATED
CENT 2001-379-M
January 30, 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


                        January 30, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. CENT 2001-379-M
               Petitioner       : A. C. No. 41-00009-05554
                                :
          v.                    :
                                :
CACTUS CANYON QUARRIES,         :
   INCORPORATED,                :
               Respondent       : Mine: Fairland Plant and
                                    Quarries


               ORDER DENYING MOTION TO RECONSIDER
              ORDER DENYING LEAVE TO FILE AN APPEAL
                               AND
            ORDER DENYING CERTIFICATION UNDER RULE 76


Before: Judge Barbour

                       PROCEDURAL POSTURE

     On November 5, 2001, the Commission received the Secretary's
Motion to File Petition Out of Time in the above captioned case.
In support of her motion, she asserts that the file was misplaced
in the Office of the Solicitor, and was not brought to the
attention of the assigned attorney until October 29, 2001.  Sec.
Mot. at 1.  Further, she contends that the attorney promptly took
action to file the penalty petition.  Id.  Indeed, the
Certificate of Service shows that the attorney filed the petition
on October 30, 2001, one day after he claims to have received the
case file.

     The Secretary is required to file the penalty petition with
the Commission within 45 days of receipt of a timely contest of
the  proposed penalty assessment.  29 C.F.R. 2700.28(a).  The
date stamped on the notice of contest shows that the Civil
Penalty Office received the notice on August 28, 2001.  Hence,
the Secretary should have filed her penalty petition on or before
October 15, 2001.  This means the penalty petition was 15 days
late.


     Subsequently, on November 13, 2001, the Commission received
the Respondent's Response to Late Filing and for Sanctions and
Answer to Petition.  In the motion, the Respondent requests that
the case be dismissed due to the Secretary's failure to
demonstrate adequate cause for the delay in filing the penalty
petition.  Resp. Mot. at 1.  The Respondent further states that
it was prejudiced by the delay, contending that witnesses had
been transferred or moved to other jurisdictions; that the delay
had caused problems with a subsequent inspection; and the delay
hurt its ability to offer witnesses with a clear memory.  Id.

     On December 13, 2001, I issued an order in which I
determined that the Secretary had demonstrated adequate cause and
accepted the late-filed penalty petition.  The Respondent,
thereafter, filed its Motion to Reconsider, and Motion for Leave
to File Appeal of Order Granting Motion to File Petition Out of
Time.  I have reviewed the Respondent's arguments, and I
conclude, again, that the Secretary has demonstrated adequate
cause for filing her penalty petition out of time.

     In addition, on January 23, 2002, I received a motion
requesting certification of this ruling under Commission Rule
76 (29 C.F.R.  2700.76).  I have reviewed the Respondent's
arguments and I conclude that certification is not appropriate.


                           DISCUSSION

     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."  In interpreting the 45-day rule, 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.

     However, 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.  Moreover, in Salt
Lake, the Commission considered Congress' intent when it drafted
the Mine Act, stating that the "considerations of procedural
fairness to operators must be balanced against the severe impact
of dismissal of the penalty proposed upon the substantive scheme
of the statute and, hence, the public interest itself."  Id.
Indeed, when Congress created the Mine Act, it did so with the
purpose of promoting safety and health in the mining industry.
S. Rep. No. 95-181, at 1 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 589 (1978).

     Mindful of the Act's purpose, the Commission held in Salt
Lake 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.  3 FMSHRC at 1715.

     I have previously held that "adequate cause is based upon
the reasons offered and the extent of the delay."  Jerry
Hudgeons, 22 FMSHRC 272, 273 (Feb. 2000). It is conceivable that
a case file could be misplaced in the Solicitor's Office in light
of the large number of cases processed.  However, had the delay
been lengthy, my disposition might have been different because
the Solicitor's Office should make periodic efforts to check
files to ensure that cases are processed in a timely manner.
Fifteen days is not a lengthy delay, and after having balanced
the procedural fairness to the operator against the severity of
dismissal and in the interest of achieving the purpose of the
Mine Act, I find that the Secretary's reason coupled with the
short delay is adequate cause.

     The Respondent should be aware that, in keeping with the
public interest, the Commission grants procedural leniency not
only to the Secretary, but to operators as well.  An operator is
required to file an answer to the penalty petition within 30 days
after service of the petition pursuant to Commission Rule 29. 29
C.F.R.  2700.29.  However, in the interest of reaching the
merits of the case, the Commission issues a Show Cause Order to
an operator if it fails to answer within 30 days in an effort to
allow a request for hearing before a case is dismissed.

     Regarding prejudice, the Respondent contends that the short
delay has prejudiced its ability to present its case in that
witnesses have moved to other jurisdictions or memories have
faded.  The contentions are not convincing.  The inspection,
which lead to this case, occurred in August 2000.  This is not
such a long time ago as to assume memories of the events at issue
have diminished irrevocably.  Also, if witnesses are
geographically unavailable the parties may agree upon, or the
judge may order, other means to secure the necessary evidence -
e.g., the submission of sworn statements.

     Accordingly, the Respondent's Motion to Reconsider is
DENIED.

     The Respondent's Motion for Leave to File an Appeal and its
Motion for Certification also are DENIED.  The essential
contention raised by the Respondent is that I have abused my
discretion by permitting the Secretary to file her petition out
of time.  As counsel for the Secretary notes, the exercise of my
discretion has been based on well established legal principles
concerning late filings and the determination of prejudice
(Secretary of Labor's Opposition to Operator's Motion for
Certification of Interlocutory Ruling 5-9). There is no conflict
within the Commission nor among its judges concerning these
principles.  Thus, the exercise of my discretion has not raised a
controlling question of law and certification will not materially
advance the final disposition of this proceeding.

     The Respondent is again ORDERED to file its answer to the
penalty petition within 30 days, i.e., on or before March 1,
2002.[1]


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Christopher V. Grier, Esquire, Office of the Solicitor, U.S.
Department of Labor, 525 South Griffin St., Suite 501, Dallas, 
TX 75202

Andy Carson, Esquire, 7232 Co. Rd. 120, Marble Falls, TX 78654


**FOOTNOTES**

     [1]:   I  note  in  passing  that  the  tone  of Respondent
counsel's  Motion  to  Reconsider and Response to Motion to Deny
Petition for Interlocutory Review is somewhat surprising. In the
future, counsel may wish  to  be  mindful  that  a  motion is an
exercise in legal argument, not in self-serving rhetoric.