Ezel / Agency Decisions / VA 85-10-R

Industrial Resources, Inc. v. Secretary of Labor (ALJ decision, March 18, 1985)

Industrial Resources, Inc. v. Secretary of Labor (FMSHRC VA 85-10-R): Late citation contest dismissed

Decision type
ALJ decision
Docket
VA 85-10-R
Decided
March 18, 1985
Presiding judge
Richard C. Steffey
Outcome
Procedural
Precedential status
Final order, not precedent
Checked against source
2026-10-20
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 1985 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.

Currency note: this decision dates from 1985
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
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 for this docket. 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

Industrial Resources sought review of an MSHA citation issued at its Buchanan No. 1 Mine. Judge Richard C. Steffey found that the company served its notice of contest on the Secretary 56 days after receiving the citation, beyond the Mine Act's 30-day notice period. An informal conference did not restart that period because the company identified no later change to the citation. The judge dismissed the contest as untimely without deciding whether the cited violation occurred. He noted that the company could contest the citation when the Secretary filed a civil penalty proposal.

Decision snapshot

  • Cited standard: The order does not identify the standard cited in Citation No. 2455472.
  • Outcome: Notice of contest dismissed as untimely; no penalty assessed in this order.
  • Key point: An informal conference alone did not extend the 30-day period for notifying the Secretary of a citation contest.

Full text (FMSHRC public release)

CCASE:
INDUSTRIAL RESOURCES V. SOL (MSHA)
DDATE:
19850318
TTEXT:
~416
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

INDUSTRIAL RESOURCES, INC., CONTEST PROCEEDING CONTESTANT
Docket No. VA 85-10-R
v. Citation No. 2455472; 12/6/84

SECRETARY OF LABOR,
Buchanan No. 1 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

ORDER OF DISMISSAL

Before: Judge Steffey

Counsel for contestant filed on February 5, 1985, a notice of contest seeking review of Citation No. 2455472 dated December 6, 1984. Section 105(d) of the Federal Mine Safety and Health Act of 1977 requires that an operator notify the Secretary of Labor within 30 days of receipt of a citation that he intends to contest the citation. The certificate of service shows that contestant did not serve a copy of the notice of contest on the Secretary until February 1, 1985, which was 56 days after contestant received the citation.

Section 2700.20 of the Commission's rules, 29 C.F.R.
2700.20, provides for a contestant to file a notice of contest with the Commission "at or following the timely filing of his notice of contest with the Secretary." The Commission's rules, therefore, recognize the need for a contestant to notify the Secretary that a citation is being contested within 30 days after its receipt by contestant.

The notice of contest states that an informal conference with respect to Citation No. 2455472 was held in Richlands, Virginia, on January 14, 1985, which resulted "in said citation remaining in full force and effect." Contestant has not submitted any modification of the citation occurring after December 6, 1984, which might justify a notification to the Secretary of an intent to contest the citation within 30 days after a modification of the citation. An informal conference is not the equivalent of a modification or change in a citation which expands the 30-day notification period required by section 105(d).

Soon after the 1977 Act was passed, I issued on January 30, 1979, in Island Creek Coal Company, Docket No. PIKE 79-18, an order of dismissal in which I interpreted section 105(d) as ~417 requiring an operator to file a notice of contest with the Commission within 30 days of issuance. I dismissed the application for review in that case because it was filed with the Commission 3 days after the 30-day period had expired. The Commission affirmed my decision in Island Creek Coal Co., 1 FMSHRC 989 (1979).

The notice of contest in this proceeding was not served on the Secretary until 26 days after the 30-day notification period had expired. Therefore, the notice of contest must be dismissed as having been untimely filed.

Contestant may, of course, contest the validity of the citation when the Secretary files a proposal for assessment of civil penalty with respect to the violation alleged in the citation. Energy Fuels Corp., 1 FMSHRC 299 (1979).

WHEREFORE, it is ordered:

The notice of contest filed on February 5, 1985, in Docket No. VA 85-10-R, is dismissed for failure of contestant to comply with the 30-day notification period provided for in section 105(d) of the Federal Mine Safety and Health Act of 1977.

Richard C. Steffey
Administrative Law Judge

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