Kinder Morgan Operating LTD (ALJ decision, July 30, 2001)

Kinder Morgan Operating LTD (FMSHRC KENT 2001-264-R): Untimely contest cases dismissed

Decision type

ALJ decision

Dockets

KENT 2001-264-R, KENT 2001-265-R, KENT 2001-266-R, KENT 2001-267-R, KENT 2001-268-R, KENT 2001-269-R, KENT 2001-270-R

Decided

July 30, 2001

Presiding judge

T. Todd Hodgdon

Outcome

Procedural

Precedential status

Final order, not precedent

Checked against source

2026-08-10

Cited standards

30 U.S.C. § 815(d) 29 C.F.R. § 2700.20(b) 29 C.F.R. § 2700.21

Official source

Read the official release (fmshrc.gov)

PDF

View Official PDF

Apply this to your situation

This order from 2001 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Final ALJ decision, not Commission precedent

This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.

Read the official release (fmshrc.gov)

Plain-English summary

Kinder Morgan filed notices contesting seven citations more than 30 days after the citations were issued. The company said an on-site manager had failed to forward the citations to management or counsel and had mistakenly believed they were covered by a stay involving other citations. Judge T. Todd Hodgdon held that late filing could be excused only when the delay was caused by MSHA, and no such allegation was made here. He dismissed all seven contest proceedings, while noting that Kinder Morgan could still raise its jurisdictional challenge when contesting the proposed civil penalties.

Decision snapshot

Governing provisions: 30 U.S.C. § 815(d); 29 C.F.R. §§ 2700.20(b) and 2700.21
Outcome: The Secretary's motion was granted and the seven late-filed contest proceedings were dismissed.
Key point: An operator's late notice contest generally cannot be excused when the delay was not caused by MSHA.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

July 30, 2001

KINDER MORGAN OPERATING LTD, : CONTEST PROCEEDINGS
Contestant
:
: Docket No. KENT 2001-264-R
: Citation No. 7641370/01; 2/26/2001
v. :
: Docket No. KENT 2001-265-R
: Citation No. 7641371/01;2/26/2001 :
: Docket No. KENT 2001-266-R
SECRETARY OF LABOR, : Citation No. 7641372/01/02;2/26/2001
MINE SAFETY AND HEALTH
:
ADMINISTRATION, (MSHA), : Docket No. KENT 2001-267-R
Respondent : Citation No. 7641373/01;2/26/2001
:
: Docket No. KENT 2001-268-R
: Citation No. 7641374/01/02;2/26/2001 :
: Docket No. KENT 2001-269-R
: Citation No. 7641375/01;2/26/2001 :
: Docket No. KENT 2001-270-R
: Citation No. 9898588;2/8/2001
:
: Grand Rivers Terminal
: Mine ID 15-18234

DISMISSAL ORDER

These cases are before me on Notices of Contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary has moved to dismiss them has having been untimely filed. The Respondent opposes the motion. For the reasons set forth below, the motion is granted.

Section 105(d) requires that a notice contesting the issuance of a citation must be filed within 30 days of receipt of the citation. In accordance with the Act, Commission Rule 20(b), 29 C.F.R. § 2700.20(b), requires the same thing. The most recent of the seven citations in these cases was issued on February 26, 2001. Therefore, the notice of contest should have been filed by March 27, 2001. However, all of the notices of contest were filed on May 4, 2001.

770

While acknowledging that the notices of contest were not filed within the prescribed 30 days, Kinder Morgan states that its on-site manager “inadvertently failed to forward to Contestant’s management staff or its counsel copies” of the citations and that the manager “subsequently” believed that the citations were included in a stay of other citations (not involved in these proceedings). (Resp. at 2-3.) Therefore, it requests that the late filing be excused.

Unfortunately, as former Chief Judge Merlin has noted: “A long line of decisions going back to the Interior Board of Mine Operations Appeals holds that cases contesting the issuance of a citation must be brought within the statutor[il]y prescribed 30 days or be dismissed.” M.A. Walker Co., Inc., 19 FMSHRC 897, 898 (May 1997) (citations omitted). Further, late filing has been permitted only when the delay was caused by MSHA’s conduct. Id.

Since there is no allegation that the delay was caused by MSHA, I am constrained to grant the Secretary’s motion. Accordingly, it is ORDERED that the captioned cases are DISMISSED.1

T. Todd Hodgdon
Administrative Law Judge

1
This dismissal will not prevent the Respondent from raising its jurisdictional challenge to these citations, since the issue can still be raised by contesting the civil penalties proposed for the citations. 29 C.F.R. § 2700.21. Indeed, the citation at issue in Docket No. KENT 2001-270- R is already before me in Docket No. KENT 2001-281.

771

Distribution:

Charles E. Allen, III, Esq., Frost Brown Todd, LLC, 400 West Market Street, 32nd Floor, Louisville, KY 40202-3363

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

772

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