.
ROGER CHRISTENSEN, employed by GEORGIA-PACIFIC CORPORATION
June 6, 1996
WEST 96-98-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET N.W., 6TH FLOOR
                    WASHINGTON,  D.C.  20006


                          June 6, 1996

SECRETARY OF LABOR,                     :    CIVIL PENALTY
PROCEEDING
  MINE SAFETY AND HEALTH                :
  ADMINISTRATION (MSHA),                :    Docket No. WEST
  96-98-M
                     Petitioner         :    A. C. No.
                     48-01019-05525A
                                        :
                    v.                  :    Gypsum Quarry No. 6
                                        :
ROGER CHRISTENSEN, EMPLOYED             :
  BY GEORGIA-PACIFIC                    :
  CORPORATION,                          :
                     Respondent         :
                                        :
                                        :
SECRETARY OF LABOR,                     :    CIVIL PENALTY
PROCEEDING
  MINE SAFETY AND HEALTH                :
  ADMINISTRATION  (MSHA),               :    Docket No. WEST
  96-99-M
                     Petitioner         :    A. C. No.
                     48-01019-05526A
                                        :
                    v.                  :
                                        :
JESSE  MARTINEZ,  EMPLOYED              :    Gypsum Quarry No. 6
  BY GEORGIA-PACIFIC                    :
  CORPORATION,                          :
                     Respondent         :

                 ORDER DENYING MOTION TO DISMISS
                   ORDER ACCEPTING LATE FILING
                       ORDER OF ASSIGNMENT

     These  cases  are  petitions  for  the assessment  of  civil
penalties filed by the Secretary  of  Labor against the
individual
respondents,  Roger Christensen  and  Jesse Martinez, under
section
110(c) of the Federal  Mine  Safety  and Health Act  of  1977, 30
U.S.C.  810(c), hereinafter referred to as the "Act".

     The instant cases are based upon a citation dated August 22,
1994, issued  to respondents' employer, Georgia-Pacific
Corporation,
for  an  alleged  violation of the Act and its  mandatory
standards.
A  penalty   petition  was previously  filed under section 110(a)
of
the  Act,  30 U.S.C.  810(a),  against  the  employer and that
case,
Docket  No. WEST 95-326, is presently  on  stay  before
Administrative
Law  Judge  August  F.  Cetti  pending assignment of these cases.

     Respondents have filed motions to dismiss on the ground that
the Secretary has  failed  to  timely  file the penalty
petitions.  The Secretary filed a response.

     On  April  5,  1996,  the respondents filed a supplement  in
support of their motions  to  dismiss advising that the inspector
who  issued  the citation  for  these  cases recently died of
cancer.
Respondents assert that they are further prejudiced by this
development.

     On April 15, 1996, an order was issued directing the
     Solicitor to
respond to the respondents' April 5 supplemental reply  and
advise how
she wished  to  proceed  in  this matter.

     On May 15, 1996,  the  Solicitor  advised that a mistake has
occurred and the inspector who  issued the citation for these
cases
has not died and is available  to  testify. It remains to be
resolved
whether the respondents' original motion to dismiss should be
granted.

     On November 13, 1995, the Secretary of Labor issued proposed
penalty  assessments against respondents.   Thereafter,
respondents
filed  timely  requests  for hearing which were  received  by the
Secretary on December 7, 1995. The Secretary had 45 days after
the hearing requests to file the penalty petitions.  29 C.F.R.
 2700.28.  The petition  for  Docket  No. WEST 96-98-M was
filed
on  February 6, 1996, and the petition  for Docket No. WEST 96-99
was  filed  on February 1, 1996. 29  C.F.R.    2700.5(d).
The petitions  were  due  on January 22, 1996, and therefore,
were
10 and 16 days late respectively.

     The  Solicitor  attached  a notice to her penalty  petitions
tating that the petitions  were  untimely  because the employees
of
the Department of Labor together with many other  parts of the
Government
were placed on  furlough from December 15, 1995, to January 8,
1996.  The
Solicitor advises that these cases were received by the Denver
Office of
the Solicitor on December 24,  1995, when the office was  closed
due to
the shutdown.  When the  office reopened, petitions  were  filed
with  the
Commission   in  the  order  they  were  received.   In addition,
the
Solicitor  states  that  the  Secretary requested an  extension
of time in
a letter sent to the undersigned prior to the shutdown advising
that certain
filings  would  be   late   due  to  the  shutdown  and
requesting that the
time for filing be tolled.

     In seeking to have these cases dismissed because the
petitions were not timely filed within 45 days, respondents
argue  that  the  Secretary  has  failed to demonstrate
adequate cause for the late filing.  Respondents assert
that their requests for hearing were filed one week prior
to  the  furlough and the Government reopened two weeks
prior to the date the petitions  were  due.   According
to respondents, they have been prejudiced because the
citation in question was issued over a year and half ago
and  they have not had access to all information supporting
the petitions.

     The arguments of respondents are not persuasive.
The delay was caused by the three week partial government
shutdown which caused a backup in the Solicitor's work.
When the  Government reopened, it was not just a matter
of filing the  petitions  in these cases, but of coping
with all the work which had  not been processed for the
period involved.  The Solicitor's  approach  of  filing
petitions  in  order  of  their  receipt  was  fair and
reasonable.   The  shutdown constituted good cause  for
the Solicitor's brief  delay  in  filing the petitions.
Secretary of Labor v. Bruce Eaton,  Employed  by Austin
Powder  Company,  Docket  No. YORK 96-13-M, unpublished
(March  3  1996).   See also,  Salt  Lake  County  Road
Department,3  FMSHRC  1714,  1716 (July  1981);  Rhone-
Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).

     Respondents allege they have been prejudiced by the
delay in filing the petitions.  Much of the delay occurred
between the issuance of the citation and the Notice of
Proposed Assessment, almost fifteen months.  I
previously have held that a seventeen month delay in
assessing penalties against an individual under section
110(c) does not constitute grounds for dismissal.  A
comprehensive investigation and various levels of
internal review are necessary for a proper evaluation
of agent liability and the existence of a knowing
violation in a 110(c) case.  Secretary of Labor v.
James Lee Hancock, Employed by Pittsburg & Midway Coal
Co., 17 FMSHRC 1671, 1674-1675 (September 1995).  See
also, Cedar Creek Quarries et al., 17 FMSHRC 1509
(August 1995).  Also, respondents have furnished no
specifics beyond the general assertion of prejudice.  I
will not in these cases infer prejudice solely from the
passage of time.

     In light of the foregoing, the respondents' motions to
dismiss these cases are DENIED, and it is ORDERED that the
late filed penalty petitions be ACCEPTED.

     It is further ORDERED that these cases be assigned to
Administrative Law Judge Cetti.


     All future communications regarding these cases should be
addressed to Judge Cetti at the following address:

     Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges Colonnade Center
Room 280, 1244 Speer Boulevard Denver, CO  80204

     Telephone No. 303-844-3993


                                   Paul Merlin
                                   Chief Administrative Law Judge


Distribution: (Certified Mail)

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO  80202-5716

Charles H. Morgan, Esq., Alston & Bird, One Atlantic Center, 1201
West Peachtree Street, Atlanta, GA 30309-3424

Mr. Paul Larson, Production Manager, Georgia-Pacific Corp., P.
O. Box 756, Lovell, WY  82431

Cement, Lime & Gypsum Workers, 161 Washakie, Lovell, WY  82431

/gl