.
CACTUS CANYON QUARRIES OF TEXAS, INCORPORATED
CENT 2002-80-M
March 3, 2003
         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
              601 New Jersey Avenue, NW, Suite 9500
                      Washington, DC   20001
                          March 3, 2003
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH      :
     ADMINISTRATION (MSHA),      : Docket No. CENT 2002-80-M
               Petitioner        : A.C. No. 41-00009-05555
                                 :                  :
                                 : Docket No. CENT 2002-124-M
                                 : A.C. No. 41-00009-05556
                                 :
                                 : Docket No. CENT 2001-285-M
                                 : A.C. No. 41-00009-05550
                                 :
          v.                     : Docket No. CENT 2001-286-M
                                 : A.C. No. 41-00009-05551
                                 :
                                 : Docket No. CENT 2001-363-M
                                 : A.C. No. 00009-05552
                                 :
                                 : Docket No. CENT 2001-364-M
CACTUS CANYON QUARRIES OF        : A.C. No. 41-00009-05553
     TEXAS, INCORPORATED,        :
               Respondent        : Docket No. CENT 2001-379-M
                                 : A.C. No. 41-00009-05554
                                 :
                                 : Mine: Fairland Plant and Quarries
                   ORDER ON MOTIONS TO DISMISS
     These consolidated cases are before me on Petitions by the Secretary
for the assessment of Civil Penalties for the alleged violation of mine safety
regulations.  The Respondent has in each case filed a Motion to Dismiss the
Petition on various grounds all related to the lapse of time between the
inspection, assessment of penalty and petition stages of the process.  An
opportunity for presentation of evidence was afforded both parties on June 25,
2002.  Both parties declined to present witnesses at the hearing while the
Secretary presented two affidavits.  The hearing became an extended oral
argument on the several variations on the theme of dismissal for delay raised
by the respondent.  These cases present for careful decision questions both of
procedure and substance in this frequently encountered but often finessed area
of practice.
                        Factual Background
     Cactus Canyon Quarry operates a small facility in the Texas Hill Country.
It has received regular visits from MSHA inspectors. The quarry is located in
the MSHA Region administered through the Dallas Regional Office.  The first
inspector visit of concern here occurred on August 14, 2000.  The visit resulted
in citations which form the basis for three of the seven cases before me.
Subsequent visits occurred on March 29, 2001, and June 27, 2001.  These visits
resulted in citations which form the basis for the other four cases before me.
     Based on the materials attached to the Petitions, as explained to a limited
extent by representations of counsel, the inspections did not disclose potential
violations with complex legal or factual implications.  Only two potential
violations were considered sufficiently important to require "special assessment"
of the appropriate penalty.  These potential violations included a failure to wear
a safety harness and removal of a guardrail protecting dangerous machinery.  As
to the guardrail violation, Respondent has argued responsibility for the violation
lies with a former employee who acted as a "saboteur."
     The procedure followed after completion of the site inspections is described
in affidavits by Mr. Michael Davis and Mr. Stephen Webber.  Mr. Davis is now the
Assistant District Manager for the Dallas, Texas District Office of the Mine Safety
and Health Administration.  He asserts he has knowledge of the methods and schedules
for processing mine safety inspection reports as the reports are evaluated in the
District Office for assessment of Civil Penalties. Mr. Webber is stationed in the
national office of the Mine Safety and Health Administration with responsibility
for processing of proposed assessments of Civil Penalties.  Mr. Webber is one of
the principal authors of a Program Policy Letter by the Department of Labor on the
subject of Proposed Assessment of Civil Penalties.  This Program Policy Letter
purports to be the definitive interpretation of the Mine Safety and Health Act of
1977 issued by the Secretary as part of her responsibility for administration and
enforcement of the Act.  I note, however, that the time periods for processing
penalty assessment recommendations are stated as goals rather than limitations,
with liberal use of should rather than must as the modifier.  It is undisputed that
none of the assessments related to the citations issued in these cases was processed
in the time periods which the Secretary established as processing time goals.
     The affidavits by Mr. Webber and Mr. Davis describe an organization in some
distress.  Action on a report by an inspector requires documents to move through the
organization with a computer  record kept of each movement.  But these movements
cannot be completed in a timely manner if computer operators are not present in
sufficient numbers.  During the period the reports concerning Cactus Canyon Quarry
were pending, severe shortages of computer operators were encountered. Other personnel
shortages were also encountered.  The affidavits do not indicate that any effective
management response to these shortages was implemented.  It appears management simply
decided to  "grin and bear it."  The citations issued to Cactus Canyon Quarries were
not processed in any different manner or on any different schedule than any other
citations processed during the same period.  None of the alleged violations of mine
safety regulations raised legal or factual issues of any great complexity or
difficulty.  Counsel for the Secretary essentially conceded at the hearing that
delays in these cases were only the result of clerical shortages.
     On the reverse side of the delay coin, Cactus Canyon Quarries has conceded that
the delay in  these cases has not worked any special hardship on its ability to respond
to the claims, with the unsupported assertion that with respect to one claim it was
deprived of the ability to raise an affirmative defense of intervening action by an
alleged "saboteur" in the person of a disgruntled supervisory employee. The Commission
has established relatively clear authority that a mine operator is held to a "strict
liability" standard in assuring compliance with safety regulations and the intervening
actions of a "saboteur" would not be sufficient to prevent liability. Secretary of Labor
v. Ideal Cement Company, 13 FMSHRC 1346 (Sept., 1991).  The only relevance a claim of
actions by a "saboteur" would be to the level of negligence involved in the violation.
In any event, testimony by the alleged "saboteur" would not be essential to evaluate
the consequences of this argument for mitigation of the claim amount.
                         Policy Analysis
     My policy analysis of the issue of when a hearing on the merits can be
preterminated begins by  identifying three critical vectors; (1) the interest of
the public in assuring a safe work place through administrative oversight, (2) the
interest of the mine operator in fair and economical administration of a safety
program; and (3) the interest of the government agency in economical and effective
administration of a safety program.  The direction the resulting vector points tells
me whether a hearing is appropriate.
      Resolution of these vectors begins  by postulating a legislative intent in the
Mine Act that every  allegation of a safety defect identified by responsible officials
should result in an opportunity for a hearing to resolve whether a defect was present
and the appropriate sanction for that defect.  An opportunity for a hearing serves to
protect both the worker at risk from unsafe conditions as well as the operator
responsible for providing those conditions.  The safety system created by Congress
assumes an opportunity for open contest of facts and policies.  Only by open dialogue
on these important  questions can workplace safety be improved or maintained.
     This "presumption" that every allegation of a safety problem is entitled to a
hearing must be  moderated by the need to establish a limit on hearings to protect the
mine operator from unfairness or harassment in responding to safety inspections.  The
general trend of decided cases is to dismiss complaints where there is some reason to
believe the delay in filing had the natural effect (intended or not) in putting the
Respondent at an unfair disadvantage in making a defense.  Where there is reason to
believe the government intentionally manipulated the case schedule to deprive the
Respondent of a legitimate defense, dismissal is even easier.
     Finally, there are multitudes of cases which stand for the proposition that
government agencies  as entities cannot be prejudiced by the inadvertent acts of
individual employees.  There is no allegation by the Operator that any of the delays
encountered in these cases was intentional or otherwise designed to put the Operator
at a disadvantage. See, Secretary of Labor v. Pierce County, 476 U.S. 253  (1986)
and cases cited there.
     The vector for the public interest points clearly in support of providing a
hearing in this and in most cases.
     The Operator has an interest in prompt and fair adjudication of any claim against
it.  If heard and decided promptly (1) the evidence for any defense is fresher, (2) the
uncertainty inherent in any claim clouds the financial status of the operator, and
(3) the pending claim is a distraction from management focus.   The Operator has an
interest in resolution of unclear issues of law or policy even at the expense of some
delay.  There do not appear to be legal or policy issues of great significance
raised in these cases.
     The vector for Operator interest points away from a hearing in the face of any
substantial delay in obtaining a hearing.
     The interests of the Secretary fall into the areas of efficient management of
resources and pursuit of program objectives.  Efficient management of resources
implies some flexibility in when and where to employ people and money, but with a
need to maintain accountability.  Pursuit of program objectives implies an intention
to bring every case to a hearing on its merits and every hearing sooner
rather than later.
     The vector of the Secretary's interest appears to point strongly toward a
hearing.
     There remains one final interest to be considered, the interest of the
Commission in enforcement of its procedural regulations.  Commission Rule 28(a),
29 C.F.R.  2700.28(a), provides that a petition for assessment of a civil penalty
shall be filed within 45 days of receipt of a timely contest of a proposed penalty
assessment.  This time is subject to extension for good cause under Commission
Rule 9, 29 C.F.R.  2700.9.  It seems fair to conclude that the longer the delay
in filing the more compelling the reasons must be to justify extending the 45-day
period.
                        Legal Conclusions
     Respondent makes two essential contentions; (1) the time between issuance of
citations and assessment of a penalty was too long, and (2) the time between
Respondent's objection to the assessments and filing of Petitions was too long.
     1. Time before Assessment
     Two key elements must be considered in connection with this period of delay;
the statutory language in the Mine Safety Act, 30 U.S.C.  815(a), and the published
interpretation of that language by the Secretary.  The statute requires that
notification of a penalty assessment shall follow issuance of a citation "within a
reasonable time."  The meaning of "within a reasonable time" has been litigated many
times.   The Fifth Circuit decision in Seven Elves v. Eskenazi,  635 F.2d 396 (C.A. 5,
1981) is particularly enlightening. The Court was confronted with a motion to  vacate
a default judgment entered under confusing circumstances.  The judgment was for a
substantial amount.  The judgment debtor filed a motion to vacate within 2 weeks of
learning of the entry of judgment and less than a year after the judgment was entered.
Noting that the precise extent of a  "reasonable time" is a matter to be determined
on the particular facts of each case, the Court stated that the term should be
"liberally construed in favor of trial on the full merits of the case." (Supra, at
403) See, Secretary of Labor v. AMAX Coal Company, 3 FMSHRC 1975 (Aug. 1981) which
involved a period of 361 days between issuance of a citation and notification of
assessment of a penalty.
     These cases are consistent with the remand order by the Commission in CENT No.
2002-379-M that directed the Administrative Law Judge to determine whether the
Respondent had suffered prejudice from the entire period of delay rather than the
period between notice of  assessment and filing of the Petition.  The Commission was
looking for  prejudice to the Respondent as the key factor in determining whether
the delay was a "reasonable time".  Only in the face of significant prejudice would
the Commission deal with the often complex questions of explanation of the time it
takes for a government agency to act.
     This principle would be very easy to apply in this case if it were not for the
fact that the Secretary has also attempted to define a "reasonable time" for purposes
of processing penalty assessments.  The view of the Secretary on this topic should be
entitled to deference, particularly because it is a subject virtually under her total
control, i.e. the flow of paper through the agency.  The Secretary quite laudably
expressed a narrow view of what is a "reasonable time" for the agency to move a
citation to a decision on assessment.  The issue for me must be whether the failure to
satisfy the time requirements stated by the Secretary is fatal to prosecution of these
cases in the absence of a showing of prejudice to Respondent by the passage of time.
     I consider this a difficult and delicate issue.  While some effect must be given
to the views of the Secretary on this fundamental concept of "reasonable time" to
pursue penalty claims, I believe the bulk of the decided cases indicate that adopting
the Respondent's position on this issue would be totally inconsistent with the intent
and purpose of the Mine Safety Act.  In the absence of demonstrated prejudice to a
Respondent from delay in assessing a penalty or filing a Petition, the only effect of
delay in proceeding longer than endorsed by the Secretary is to impeach the credibility
of the witnesses called by the Secretary to argue the urgency and importance of the
alleged safety violations.
     I must conclude that the time taken in these cases by the Secretary to notify
the Respondent of the penalty assessment was not so long and prejudicial as to preclude
the Secretary from proceeding to a hearing on these claims.
     2.  Time before Petition
     The Commission has held in several cases that the 45-day period for filing a
petition of assessment of a penalty is not a statute of limitations.  See, Rhone-Poulene
of Wyo. Co., 15 FMSHRC 2089 (Oct. 1993) aff'd 57 F.3d 982 (10th Cir. 1995).  The test as
to the limit of time at this point in the process is essentially the same as the test
for a "reasonable time" at the earlier stage of the process, i.e. prejudice to the
Respondent balanced by adequate explanation for the time taken beyond that afforded by
the Commission's Rule.  For small delays accepted adequate explanations include press of
other work, inadequate clerical assistance and personal hardships.  For longer delays
the reasons need to be more unique and special to the particular case, e.g., distraction
from investigation of a major mine accident or loss of staff to national emergency. My
conclusion assumes good faith on the part of government agency management to reallocate
people to cover the pending work load as quickly as possible.
     I must conclude that none of the delays in filing Petitions in these cases was so
long and so beyond the explanations given by counsel for the Secretary as to preclude
the Secretary from obtaining a hearing on the merits of these claims.
                              ORDER
     For the reasons given above, the several motions to dismiss filed by the Respondent
in the above captioned matters are denied.  Counsel are directed to confer within the next
30 days on any discovery matters they believe need to be complete prior to a hearing.
Counsel for the Secretary will initiate a prehearing conference by telephone call within
10 days of completion of discovery.  The purpose of the prehearing conference will be to
schedule a time and place for a hearing.
                              Irwin Schroeder
                              Administrative Law Judge
Distribution: (Certified Mail)
Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor,
525 S. Griffin Street, Suite 501, Dallas, TX 75202
Andy Carson, Esq., 7232 County Road 120, Marble Falls, TX 78654