Big Horn Calcium Company

Plain-English summary

MSHA issued Big Horn Calcium a citation for an alleged violation of 30 C.F.R. § 56.11001 at the Granite Canyon Quarry. The citation was served on the company's supervisor at the mine, but Big Horn did not file its contest within 30 days. Judge August F. Cetti rejected the argument that service on the mine supervisor was insufficient because the supervisor was the company's agent. He dismissed the contest as untimely, while noting that Big Horn could still challenge the violation in the related civil penalty proceeding.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.11001; 30 U.S.C. § 815(d)
• Outcome: The contest of Citation No. 3455166 was dismissed because the filing period had expired.
• Key point: Service of a Mine Act citation on an operator's responsible mine-site agent starts the contest period, even when the corporate office did not receive a copy.

Full text (FMSHRC public release)

CCASE:
BIG HORN CALCIUM V. SOL (MSHA)
DDATE:
19900313
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

BIG HORN CALCIUM COMPANY, CONTEST PROCEEDING
CONTESTANT
Docket No. WEST 90-31-RM
v. Citation No. 3455166; 7/24/89

SECRETARY OF LABOR, Granite Canyon Quarry
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
PETITIONER

                ORDER DISMISSING CONTEST PROCEEDING

Before: Judge Cetti

 I have before me the Secretary of Labor's Motion to

"Dismiss" the contest of Citation No. 3455166, issued on July 24,
1989, for the failure of Big Horn Calcium to contest the Citation
within 30 days of receipt, as required by Section 105(d) of the
Mine Act, 30 U.S.C. 815(d), and Section 2700.20 of the
Commission's Rules.

 The Secretary in support of the motion states that on July

24, 1989, MSHA Inspector Thomas L. Markve issued Citation No.
3455166 for violation of 30 C.F.R. 56.11001 to Big Horn Calcium
Company, a contractor working at the Granite Canyon Quarry. The
Secretary contends that the facts clearly establish that Mike
Latka, Big Horn Calcium's supervisor and company agent on the
property, was served with the citation on July 24, 1989, and Mr.
Latka participated in the close-out conference on July 25, 1989,
where both Citation Nos. 3455165 and 3455166 were discussed.

 I issued a Notice of Intention advising the parties of my

intention to grant the Motion of Dismissal unless good cause to
the contrary be shown in writing within the next 10 days.

 In response to the "Notice of Intention" Big Horn stated in

part as follows:

      "2. Big Horn does not maintain a corporate office
       at the Granite Canyon Quarry or in Cheyenne, Wyoming,
       staffed by corporate officers. Citation No. 3455166
       was not received by Big Horn at its corporate office
       in Billings, Montana.

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3. Citation No. 3455166 apparently was tendered by
an MSHA inspector to local personnel at Big Horn's
Granite Canyon Quarry. The receipt by subordinate
personnel at the Granite Canyon Quarry of Citation
3455166 does not constitute receipt within the meaning
of the Act. See, J.I. Hass Co. Inc., 1981 CCH OSHD
25,375 (3d Cir. 1981); Buckley & Company Inc. v.
Secretary of Labor, 507 F.2d 78 (3d Cir. 1975).

    4. Local quarry personnel inadvertently failed to
    notify and provide Big Horn a copy of this citation.
    The administrative error and neglect of subordinate
    personnel at the Granite Canyon Quarry to promptly
    forward Citation No. 2455166 to authorized corporate
    representatives was excusable and inadvertent. See,
    P & A Construction Co., Inc., 1981 CCH OSHD   25,783
    (1981); Special Coating Systems of New Mexico, Inc.,
    1980 CCH OSHD %57 24,904 (1980). Big Horn did not
    initially submit a notice of intent to contest Citat-
    ion 3455166 due to mistake, inadvertent surprise and
    excusable neglect within the meaning of Rule 60(b),
    Federal Rules of Civil Procedure.

    5. Big Horn has made a good faith effort to comply
    with the procedural requirements of the Act, and has
    promptly responded to all known citations received
    by it within the meaning of the Act. Upon receipt
    in late September, 1989, of an Accident Investigat-
    ion Report Big Horn became aware of a reference to
    Citation 3455166. Big Horn attempted to locate a
    copy of that citation but could not find a record of
    having received the citation. . . . Big Horn subse-
    quently obtained a copy from the MSHA office in Denver,
    Colorado, and filed its notice of contest."

 The Secretary replied to Big Horn's response in part as

follows:

       "Big Horn's legal position is clearly wrong.
     The statutory scheme of the 1977 Mine Act is very
     different from the 1970 Occupational Safety and
     Health Act. Section 104(a) of the Mine Act, re-
     quires that MSHA issue citations and withdrawal
     orders for violations of Mine Act, or any mandatory
     health or safety standards, with reasonable prompt-
     ness. Requiring MSHA inspectors to issue citations

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to mine operators at their corporate offices, instead
of to their agents on mine property, would restrict
MSHA's enforcement actions and limit the mine opera-
tor's ability to abate violations rapidly.

         It is beyond dispute that mine operators are
     liable for the acts of their agents under the Mine
     Act. Allied Products Co. v. FMSHRC, 666 F.2d 890
     (5th Cir. 1982). Mr. Latka was clearly an agent as
     defined by Section 3(e) of the Mine Act, and his
     receipt of the citation is binding on Big Horn.

         The OSHA cases cited by Big Horn relate to a
     regulatory and statutory scheme in which the notice
     of proposed penalties are served upon a corporate
     employer at the same time the citation is issued.
     Thus, there is always a delay between the date of the
     inspection and the issuance of citations under
     OSHA.

         Mine Act citations and orders are issued at the
     time of the inspection in most cases, and such docu-
     ments are served on a responsible official at the mine
     site. Furthermore, a mine operator may challenge the
     citation either immediately after its issuance or
     during a later penalty proceeding. An OSHA contest
     of a citation always occurs after both the citation
     and penalty proposed have been issued. Therefore,
     the rationale concerning receipt of a citation by a
     corporate employer in an OSHA case does not apply to
     serving an operator's agent on the mine property in
     a MSHA case."

 On March 2, 1990, the parties filed joint written

stipulations so as to avoid need for a hearing on the Secretary's
pending Motion to Dismiss.

                  Agreed Stipulations

 1. On July 24, 1989, MSHA Inspector Thomas L. Markve issued

Citation No. 3455166 to Mike Latka, a supervisor employed by Big
Horn at the Granite Canyon Quarry, located in Granite, Wyoming.

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2. Big Horn states, and the Secretary does not dispute, that Mr.
Latka did not forward a copy of Citation No. 3455166 to Big
Horn's corporate office located in Billings, Montana.

 3. Big Horn and the Secretary stipulate that with the

exception of the jurisdictional issue raised herein, all other
issues raised in this contest proceeding can also be raised in
the pending civil penalty proceeding in Docket No. WEST 90-80-M.

                       Discussion

 Upon careful review of the entire record I adopt and
 incorporate by reference the rationale set forth in the
 Secretary's above quoted reply.

 It is also noted that 30 C.F.R.   41.1 and 30 C.F.R.    52.2

(c)(2) and several other 30 C.F.R. sections define "Operator" as
including any agent or person charged with the responsibility for
the operation or supervision of a mine and 30 C.F.R. 41.11
requires an operator to notify MSHA of "the name and address of
the person at the mine in charge of health and safety." (Emphasis
added).

 In Island Creek Coal Company v. Secretary of Labor and

United Mine Workers of America, FMSHRC Docket No. PIKE 79-18
(August 3, 1979), the Review Commission affirmed the
Administrative Law Judge's dismissal of Island Creek Coal
Company's Application for Review "as not having met the
jurisdictional filing period established by Section 105(d) of the
Act." In that case the Application for Review was not received
until 3 days after the 30-day filing period.

 Stipulation No. 2 quoted above, conforms with existing

practice. Under Quinland Coals, Inc., 9 FMSHRC 1641 (September
1987) the failure to file a notice of contest does not preclude
the mine operator from challenging in a penalty proceeding the
fact of violation or any special findings contained in a citation
or order including that the violation was of a significant and
substantial nature or was caused by the operator's unwarrantable
failure to comply with the standard.

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ORDER

 The Secretary's motion to dismiss the contest of Citation

No. 3455166 as not having met the filing period established by
Section 105(d) of the Mine Act is granted. The above captioned
contest proceeding is dismissed.

                                  August F. Cetti
                                  Administrative Law Judge