Aggregates Manager Digital Magazine
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filing time limits is a secondary consideration to the primary purpose of section 105(d), i.e., ensuring prompt enforcement of the Act's penalty structure." Accordingly, the Commission held that it must "balance concerns for procedural regular- ity against the severe impact of a dismissal on the Mine Act's penalty scheme." To achieve this balance, the Commission held that adequate cause for the late filing of a petition for assessment exists where MSHA provides a "non-frivolous" reason for the delay. Specifi- cally, the Commission held that MSHA's excuse may not be "facially implausible" and should be supported by evidence showing that the delay was not the result of "mere caprice" or the result of MSHA's "willful delay, intentional misconduct, or bad faith." If MSHA can meet this minimal burden, the opera- tor must then establish "at least some actual prejudice arising from the delay" before a dismissal is justified. Any claims of potential or inherent prejudice caused by the delay will be rejected. Then, using its "clarified" Salt Lake test, the Commission considered whether the ALJ had correctly concluded that MSHA had not established adequate cause for the late filings against Long Branch. Citing the impact of increased enforce- ment measures by MSHA in District 4 (where Long Branch was located), the Commission credited MSHA's evidence showing that District 4 was simply "overwhelmed" by the number of petitions for assessment that needed to be filed. The Commission then concluded by holding that MSHA's delay in filing the petitions for assessment against Long Branch were adequately explained by the "unusual circumstances that existed during the relevant time period." Consequently, the Commission reversed the ALJ's dismissal of the petitions for assessment against Long Branch and remanded the cases to the ALJ for a resolution on the merits. Based upon the Commission's decision in Long Branch, the industry can safely assume that nearly any justification MSHA provides for a late filing will be found to be adequate cause. Thus, the answer to the question posed by my colleague in the June edition of Rock Law — will the Commission hold MSHA's feet to the fire to timely petitions for assessments — is a resounding "no." AM Printed version of the Aggregates Manager 2012 Aggregates Industry Atlas not enough for you? While the printed version of the Aggregates Manager 2012 Aggregates Industry Atlas, will become an integral part of doing your job, perhaps you'll need additional information about companies listed in the atlas. If so, we have the perfect companion, the Atlas on CD contains information about mine locations, types of rock mined, GPS coordinates, pertinent facts about companies listed in the atlas, and more. Atlas on CD contains compete information on more the entire 2012 Aggregates Industry Atlas in pdf format. Order the Aggregates Manager 2012 Aggregates Industry Atlas on CD or the printed version of the Atlas today! To order call or visit: .AggManAtlas.com AGGREGATES MANAGER November 2012 39 Then you'll want its companion… Atlas on CD