CAM Mining, LLC

Plain-English summary

CAM Mining moved for summary decision because the Secretary filed three penalty petitions about four months after they were due. The Secretary did not respond, and Judge Gary Melick found that the asserted explanation concerned delivery of the original assessment rather than a later litigation packet. He held that the Secretary had shown no factually supported cause for missing the filing deadline and dismissed all three dockets. The Commission later vacated the dismissals because the decision did not address an earlier order that had already allowed the late filings.

Decision snapshot

• Governing rules: 29 C.F.R. §§ 2700.28 and 2700.76(b)
• Outcome: Summary decision was granted and all three penalty petitions were dismissed.
• Subsequent review: The Commission vacated the dismissals and remanded in kent-2009-444-commission.
• Key point: The ALJ required a factually supported explanation for a late penalty petition, but the Commission required consideration of the earlier ruling allowing the filings.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 21, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v,

CAM MINING, LLC

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. KENT 2009-444

A.C. No. 15-18911-170135-01

Docket No. KENT 2009-445

A.C. No. 15-18911-170135-02

Docket No. KENT 2010-446

A.C. No. 15-18911-170135-03

SUMMARY DECISION

On August 26, 2011 Respondent filed, inter alia, a motion for summary decision in these
proceedings for the Secretary’s failure to establish adequate cause for her late filing of the petitions for
civil penalties herein. To date the Secretary has not responded to the motion and the Respondent’s
proffered statement of facts is therefore accepted as undisputed.

Commission Rule 67(b), 29 C.F.R. § 2700.76(b) provides that “a motion for summary
decision shall be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) That there is no genuine issue as to any
material fact; and (2) That the moving party is entitled to summary decision as a matter of law”.

It is now undisputed that on December 3, 2008, the Department of Labor’s Mine Safety
Health Administration (MSHA) Office of Assessments issued Assessment No. 000170135. On
December 5, 2008, the assessment was sent to CAM Mining, LLC (CAM) by Federal Express and
was delivered to CAM on December 9, 2008.

After reviewing and then deciding to contest the majority of the assessment, counsel for
Respondent returned the assessment form on December 12, 2008 and asked for a hearing. That
assessment form was received by MSHA on December 16, 2008. MSHA’s Data Retrieval System
then showed the citations and orders were in contest.

As agreed to by MSHA, the Petitions for Assessment should have been filed by January 29,
2009. No petition was filed. On March 24 and April 23, 2009, counsel for Respondent contacted
MSHA Solicitor, John Mulvey, about the missing petition and provided mailing information and
delivery information on the assessment. Mr. Mulvey informed said counsel that the matter was being
looked into. On April 27, 2009, Mr. Burke, the District 6 Conference and Litigation Representative
(CLR), filled three Motions to Allow Late Filing, all listing the same reason. The original motion
claimed the Petitions for Assessment were not filed because the litigation packet was mis-delivered
to an S. Iverson, who does not work for MSHA.

However, all the documents that MSHA based its Motion to Allow Late Filing on were the
original assessment forms – not a litigation packet. In fact, the dates relied upon all predate the time
Respondent actually asked for a hearing. All of the documents focus on a December 9, 2008
delivery, three days before Respondent even contested the assessment and asked for a hearing. The
Secretary could not have generated a Hearings Package, as no hearing had been requested on
December 5, 2008. The Secretary has provided no reason why the she failed to generate Petitions
for Assessment and why they were not filed until April 27, 2009, some four months after it was due.
It appears that, but for the questions of Respondent’s counsel, Petitions would not have been filed.

This Commission permits the late filing of penalty petitions beyond the 45 days provided in
Commission Rule 28, 29 C.F.R. § 2700.28, where the Secretary demonstrates adequate cause for the
delay and where the respondent fails to show prejudice from the delay.” Lesueur-Richmond Slate
Co., 21 FMSHRC 98, 99 (Jan. 1999) (citing Salt Lake County Road Dept., 3 FMSHRC 1714, 1716
(July 1981)). In “the event the Secretary demonstrates adequate cause, justice may require that the
case nevertheless be dismissed if the operator can demonstrate that it was prejudiced in the
preparation of its case by the stale penalty proposal.” Cactus Canyon Quarries of Texas, Inc., 25
FMSHRC 262, 265 (March 2002).

In this case, the Secretary has shown no factually supportable reason for the late filing. As
noted in the undisputed statement of facts, the Secretary bases her entire argument for late filing on
the representation that a litigation packet was mis-delivered. However, it is now also undisputed that
the Secretary’s argument relates to the original assessment, dated December 3 and overnighted to
Respondent on December 5. The December 9 signature, “S. Iverson”, cited by the Secretary is in
fact the date Respondent received the assessment. Within three days of receiving the assessment, on
Dec. 12, 2008, Respondent asked for a hearing.

Under the circumstances, I find that there has been no factually supported reason shown for
why the petitions were not filed by January 29, 2009 as required by Commission Rule 28.
Accordingly, without a showing of any cause, no less adequate cause, these petitions must be
dismissed.

Order

Docket Nos. Kent 2009-444, Kent 2009-445 and Kent 2009-446 are hereby dismissed.

Gary Melick

Administrative Law Judge

(202) 434-9977

Distribution:

Lora J. Manson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box 273,
Charleston, WV 25321

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