Price River Coal Company, Successor to Braztah Corporation (ALJ decision, March 16, 1982)

Plain-English summary

MSHA cited Price River Coal's predecessor for combustible material and ventilation plan violations, then filed its penalty proposal months after the deadline. Judge John J. Morris found the Secretary's workload explanation insufficient to justify the delay. He also found prejudice because a key company witness had left and could not be located. He vacated both citations and their proposed penalties without reaching the underlying safety allegations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.316.
• Outcome: Citations 247212 and 247213 and proposed penalties vacated.
• Key point: The late filing lacked adequate cause and prejudiced the operator's defense.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PRICE COAL
DDATE:
19820316
TTEXT:
~489

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 79-59
PETITIONER
v. A/C No. 42-00165-03016

PRICE RIVER COAL COMPANY,
MINE: Braztah No. 3
SUCCESSOR TO
BRAZTAH CORPORATION,
RESPONDENT

Appearances:
Phyllis K. Caldwell Esq.
Office of Henry C. Mahlman, Regional Solicitor United States Department of Labor Denver, Colorado, For the Petitioner

Stanley V. Litizzette Esq.
Price River Coal Company
Helper, Utah,
For the Respondent

Before: Judge John J. Morris

DECISION

The Secretary of Labor on behalf of the Federal Mine Safety and Health Administration, (MSHA), charges respondent Price River Coal Company, successor in interest to Braztah Corporation, with violating a safety regulation adopted under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.

Citation 247212 alleges a violation of 30 C.F.R. 75.400.
The regulation provides as follows:

75.499 Accumulation of combustible materials.

(Statutory Provision)

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein.

A penalty of $225 is proposed for the foregoing violation.
~490
Citation 247213 alleges a violation of 30 C.F.R. 75.316. The regulation provides as follows:

75.316 Ventilation system and methane and dust control plan.

A ventilation system and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and approved by the Secretary shall be adopted by the operator and set out in printed form on or before June 28, 1970. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least every 6 months.

A penalty of $130 is proposed for this violation.

ISSUES

The threshold issue is whether the proposal to assess penalties should be dismissed for late filing; if not, a further issue is whether respondent violated the regulations and, if so, what penalty is appropriate.

LATE FILING OF PROPOSED PENALTIES

The threshold issue determinative of this case is whether the proposed penalties should be vacated due to the late filing by petitioner of his proposal for penalties.

The record shows that respondent was cited on December 20, 1978 for the alleged violations of the regulations. On November 5, 1979 petitioner filed his proposal for penalties together with a motion for the Commission to accept such late filing. In support of his motion petitioner recited that he had a high volume of case workload; further, he had lacked clerical personnel since mid-September, 1979.

Respondent opposed the motion for late filing and renewed the objection at trial (Tr. 3). In its written motion in opposition Respondent states that its key witness, Stewart Jones, on whom the initial citation was served, had resigned his position with the company and his present whereabouts were unknown.

On January 4, 1980 an order was entered accepting the late filing. Respondent's objection were overruled but it was indicated that respondent could offer evidence of prejudice at the hearing on the merits. The hearing took place in Salt Lake City, Utah on March 19, 1981.

In Salt Lake County Road Department 3 FMSHRC 1714 (July 1981) the Commission considered the effect of the Secretary in failing to comply ~491 with 29 C.F.R. 2700.27. (FOOTNOTE 1) Basically, the Commission directs that any late filing by the Secretary must be based on adequate cause. In addition, an operator may object to a late penalty proposal on the grounds of prejudice.

At the hearing the evidence showed that during the inspection company representative Stewart Jones accompanied MSHA inspector Ted Coughman (Tr. 9, 10). At some point Jones called John Presett, a company safety inspector (Tr. 20, 24). Presett knew the area of the west belt drive had been rock dusted and he went to that location but he didn't walk the cited area (Tr. 25-28).

At the hearing John O'Greene, the director of safety for respondent, testified he did not know of Jones' whereabouts (Tr. 40).

DISCUSSION

On the authority of Salt Lake County Road Department, supra, respondent's motion to dismiss is sustained.

Other than to refer to his high volume of cases the Secretary offers no explanation for his failure to file his proposal for penalty from the time the notice of contest was received until his clerical personnel problems arose in mid-September, 1979.

I further find that the absence of a key witness, Stewart Jones, prejudiced respondent's case. I do not consider that the two page hand written statements of Stewart Jones received in evidence alleviates the prejudice to respondent's defense (Exhibit R1).

For the foregoing reason I enter the following

ORDER

Citations 247212 and 247213 and all proposed penalties therefor are VACATED.

John J. Morris
Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 The Commission regulation pertaining to filing provides as follows:

2700.27 Proposal for a penalty.
(a) When to file. Within 45 days of receipt of a

timely notice of contest of a notification of proposed assessment of penalty, the Secretary shall file a proposal for a penalty with the Commission.