Cactus Canyon Quarries of Texas Incorporated

Plain-English summary

Cactus Canyon Quarries faced two citations involving fall protection on a conveyor pulley and an inoperable backup alarm on a track loader. The Secretary filed her penalty petition after the proposed penalties, and then sought more time to respond to the operator’s motion to dismiss. Judge David F. Barbour denied the extension request because it was filed after the response deadline. He dismissed one citation because the Secretary gave no reason for the delayed penalty assessment, left the other citation pending, and assigned the case to Judge Irwin Schroeder.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.5(d), 2700.8, 2700.9(a), and 2700.10(d)
• Outcome: The motion for an extension was denied, Citation No. 6207831 was dismissed, and Citation No. 6209922 remained pending for reassignment and trial.
• Key point: When the Secretary offers no reason for a delayed penalty assessment, the judge may dismiss the affected citation without reaching prejudice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephon e No.: 202-653-5454
Telecopier No. : 202-653-5030

                                         June 17, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2002-124-M
Petitioner : A. C. No. 41-00009-05556
v. :
: Mine: Fairland Plant & Quarries
CACTUS CANYON QUARRIES OF :
TEXAS INCORPORATED, :
Respondent :

                               ORDER OF PARTIAL DISMISSAL
                                 ORDER OF ASSIGNMENT

Before: Judge Barbour

                                    PROCEDURAL POSTURE

    On March 29, 2001 and September 20, 2001, the Mine Safety and Health Administration

(“MSHA”) issued Citation Nos. 6207831 and 6209922, respectively, against the Respondent,
Cactus Canyon Quarries (“Cactus Canyon”). Citation No. 6207831 was issued because it is
alleged that a foreman was standing on top of the head pulley at the number 4 conveyor belt
without any fall protection. Citation No. 6209922 was issued because it is alleged that the back-
up alarm on the Komatsu Track Hole was inoperable. Altho ugh the citations were issued in
March and September of 2001, the proposed penalties were not assessed until February 12, 2002,
appro ximately 13 months after the issuance of Citation No. 6207831 and 5 months after the
issuance of Citation No. 6209922.

   Cactus Canyon, subsequently, timely filed its notice of contest.1 The Secretary of Labor

(“Secretary”) then filed her penalty petition on April 15, 2002.2 Cactus Canyon filed a motion to

     1
      / Commission Rule 26 provides: “[a] person has 30 days after receipt of the proposed penalty assessment

within which to notify the Secretar y that he cont ests the pr oposed penalty.” 29 C.F.R. § 27 00.26. The record does
not indicate the date Cactus Canyon received the propose penalty assessment, but a representative of Cactus
Canyon dated Exhibit A of the proposal, February 28, 2002. Cactus Canyon then returned the form indicating it
wished to contest the citation, and MSHA received the form on March 6, 2002.

     2
      / Cactus Canyon states that it does not know why Citation No. 6209922 was included with the penalty

petition because it was not contested. However, the Notice of Contest clearly indicates that Cactus Canyon sought

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dismiss, on April 26, 2002, which was followed by the Secretary’s Entry of Appearance and
Substitution of Counsel on May 3, 2001, and her Motion For an Extension of Time to Respond to
Respondent’s Motion to Dismiss on May 24, 2001.

    For the reasons articulated below, I deny the Secretary’s motion for extension of time, I

grant in part Cactus Canyon’s motion to dismiss and I assign the case for further proceedings.

                              MOTION FOR EXTENSION OF TIME

    In her motion for an extension of time, the Secretary asserts that she filed a similar motion

for extension for time in Docket No. CENT 2002-80-M - ano ther case involving Cactus Canyon -
on May 13, 2002, and she intended to do the same in the instant case. Sec. Mot . For Ex. of Time
to Respond to Resp. Mot. to Dis. at 1. However, Counsel forgot to do so. Id. She further states
that Administrative Law Judge Irwin Schroeder has set a hearing on Cactus Canyon’s motion to
dismiss in Docket Nos. CENT 2002-80-M, CENT 2002-285-M, CENT 2002-286-M, and CENT
2002-379-M. 3 Id. She seeks additional time to respond until July 15, 2002, to avoid any
duplicative work.

     The Commission’s rules govern when responsive pleadings must be filed. A party may file

a statement in opposition to a motion within 10 days after service of the motion. 29 C.F.R.
§ 2700.10(d). When the motion is served by mail, an additional 5 days are added to the time
allot ted for filing an opposition. 29 C.F.R. § 2700.8. If a party seeks an extension of time to file
a document, the request must be filed no later than 3 days before the expiration of time allowed
for the filing or serving of the document. 29 C.F.R. § 2700 9(a). Finally, a motion for an
extension of time is effective upon receipt. 29 C.F.R. § 2700.5(d).

    Cactus Canyon filed its motion to dismiss on April 26, 2002. Therefore, the Secretary had

until May 13, 2002, to file her response. The Commission did not receive her motion for an
extension of time to respond until May 24, 2002. While the Secretary’s counsel did not undertake
this case until May 3, Counsel had 10 days to file a mot ion for an extension of time before the
time for rebuttal expired. The days lapsed without the Secretary taking any action. Counsel’s
excuse as having forgotten to file the motion is unacceptable.

     Accordingly, the Secretary’s motion is DENIED.

                                      MOTION TO DISMISS

to contest both citations in this case.

     3
      / The Secretary is wrong regarding Docket Nos. CENT 2002-80-M and CENT 2002-379-M. They are

not assigned to Judge Schr oeder. Therefore, he does not ha ve jurisdiction to hear ar guments on motions t o dismiss
those cases.

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    Section 105(a) of the Mine Act (“the Act”) requires the Secretary to notify an operator of

a proposed civil penalty “within a reasonable time after the termination of such inspection or
investigation.” 30 U.S.C. § 815(a). Although the Act gives no guidance regarding the duration
of “a reasonable time,” MSHA has provided some direction in its Program Policy Manual,
defining “reasonable time” as “normally . . . within 18 months of the issuance of a citation or
order.” The manual further provides, however, that “[c]itations and orders not associated with a
serious accident, fatality, or other special circumstance that are recommended for a special
assessment should be assessed within 75 days of the issuance date. ” Program Policy Manual,
Part 100, at 6(f) (2002).

    Cactus Canyon moves for dismissal of Citation No. 6207831 because the Secretary failed

to assess a penalty for the citation within 75 days. Resp. Mot. to Dis. at 1. In support of it’s
argument, Cactus Canyon cites a decision in which Administrative Law Judge August Cetti ruled
a 15-month delay unreasonable where the case was “uncomplicated.” United Metro Materials,
23 FMSHRC 1085, 1088 (Sept. 2001)(ALJ). Judge Cetti concluded that the Secretary had failed
to demonstrated adequate cause for the delay because her explanation was general and vague, and
she failed to expound upon the specific circumstances which caused the delay. Id.

    The Commission has held that if a penalty proposal is delayed, the judge must consider (1)

the reason for the delay, and (2) whether the operator is prejudiced by the delay, the identical test
used when scrutinizing the Secretary’s delay in filing the penalty petition. Steele Branch Mining,
18 FMSHRC 6, 14 (Jan. 1996). The Secretary bares the burden of showing the reason for the
delay. I am unable to evaluate the Secretary’s position because she has failed to set forth any
reason for her delay in assessing the penalty for Citation No . 6297831. Accordingly, in the
interest of just ice, I must grant Cactus Canyon’s motion to dismiss with respect to t hat citation. 4

                                    ORDER OF ASSIGNMENT

    The Secretary’s petition and her allegations remain extant with respect to Citation No.

6209922, and I assign this case to Administrative Law Judge Irwin Schroeder for trial and
decision. Judge Schroeder will rule on any pending motions. All future communications
regarding this case should be addressed to Judge Schroeder at the following address:

                               Mine Safety and Health Review Commission
                               Office of Administrative Law Judges
                               Two Skyline Place, Suite 1000
                               5203 Leesburg Pike
                               Falls Church, Virginia 22041




    4
      / It is unnecessary to evaluate whether Cactus Canyon was prejudiced by the delay as the first part of the

test has not been satisfied.

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                          Telephone No. (703) 756-5232
                          Fax No.       (703) 756-6201



                                         David F. Barbour
                                         Chief Administrative Law Judge

Distribut ion:

Thomas A. Paige, Esq., U. S. Department of Labor, Office of the Solicitor, 525 Griffin Street,
Suite 501, Dallas, TX 75202

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

dcp

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