<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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