Ezel / Agency Decisions / va-99-128-alj
FMSHRC ALJ decision Docket VA 99-128 Decided November 3, 1999 Procedural Judge Paul Merlin

Donald J. Riffe, employed by Knox Creek Coal Corporation

Donald J. Riffe, employed by Knox Creek Coal Corporation (FMSHRC VA 99-128): Late penalty petition dismissed

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This order from 1999 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 1999
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 order dismissed the civil-penalty proceeding after finding that the Secretary did not show adequate cause for filing the petition 26 days late. It 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

The Secretary of Labor filed a civil-penalty petition against Donald J. Riffe, employed by Knox Creek Coal Corporation, 26 days after the deadline. The Solicitor asked permission to file late and explained that she misunderstood the office procedure for drafting a new petition in a section 110(c) case. Judge Paul Merlin held that the explanation did not establish adequate cause, particularly because the Solicitor had handled many mine-safety cases. The judge therefore denied the request for leave and dismissed the proceeding.

Decision snapshot

  • Cited standard(s): 30 U.S.C. § 815(a), and 29 C.F.R. §§ 2700.5(d), 2700.26, and 2700.28
  • Outcome: Leave to file the late petition was denied, and the civil-penalty proceeding was dismissed.
  • Key point: A solicitor’s misunderstanding of basic filing procedures does not establish adequate cause for a late penalty petition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASHINGTON, D. C. 20006-3868

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 99-128
Petitioner : A. C. No. 06872-03509 A
:
v. : Kennedy #2
DONALD J. RIFFE, EMPLOYED :
BY KNOX CREEK COAL :
CORPORATION, :
Respondent :

                                ORDER OF DISMISSAL

Before: Judge Merlin

   This case is a petition for the assessment of a civil penalty filed by the Secretary of Labor

under section 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(a).

    The Solicitor has filed a motion for leave to file her petition out of time and the operator

has filed a response in opposition.

    On July 21, 1999, the Secretary issued a notice of proposed civil penalty assessment. The

respondent timely contested this assessment by filing a request for hearing within 30 days. The
request was received on August 10, 1999. 29 C.F.R. § 2700.26. The Secretary had 45 days after
receipt of the contest to file the penalty petition. 29 C.F.R. § 2700.28. Therefore, the petition
was due on September 24, 1999, but the Solicitor did not file until October 20, 1999. 29 C.F.R.
§ 2700.5(d). It was, therefore, 26 days late.

     The Commission has permitted late filing of penalty petitions where the Secretary

demonstrates adequate cause for the delay and where the respondent fails to show prejudice from
the delay. Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981). The Secretary
must establish adequate cause for the delay in filing, apart from any consideration of whether the
operator was prejudiced by the delay. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct.
1989). A determination of adequate cause is based upon the reasons offered and the extent of the
delay.

  In this case the sole basis for the Solicitor’s request to permit late filing is her own

misunderstanding of procedures followed in her office. She states that she was unaware that she

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was required to draft a new petition in a 110 (c) case, because in 110(a) cases a petition is
automatically generated upon assignment. This Solicitor has handled many mine safety cases. I
find that her professed lack of understanding of such basic and simple procedures does not
constitute adequate cause. This type of excuse could be made in virtually any case where the
Solicitor is late.

   In light of the foregoing, it is ORDERED that this case is DISMISSED.




                                       Paul Merlin
                                       Chief Administrative Law Judge

Distribution: (Certified Mail)

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