Ernie Brock (ALJ decision, February 3, 1982)

Plain-English summary

MSHA sought a $300 individual civil penalty against Ernie Brock, a former foreman at Peabody Coal Company's Ken No. 4 North Mine, under section 110(c) of the Mine Act. The underlying citation concerned roof conditions; the proposal named 30 C.F.R. § 75.200, while the attached citation showed a change to § 75.202. Brock asked to dismiss the case because MSHA brought the penalty proceeding more than two years after the citation and the mine had since been sealed, preventing him from inspecting the conditions for his defense. MSHA opposed that motion but asked to withdraw its own proposal because it lacked enough evidence. Judge George A. Koutras denied MSHA's withdrawal request, granted Brock's motion based on prejudice from the delay, and dismissed the proceeding with prejudice. He did not decide whether Brock had committed the alleged violation or assess a penalty.

Decision snapshot

• Cited provisions: 30 U.S.C. § 820(c); 30 C.F.R. §§ 75.200 and 75.202 as described in the proposal and attached citation.
• Outcome: Individual $300 penalty proceeding dismissed with prejudice; no penalty assessed.
• Key point: The judge found that MSHA's delay prejudiced Brock's ability to defend the case after the mine was sealed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ERNIE BROCK
DDATE:
19820203
TTEXT:
~201

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. KENT 81-192
PETITIONER
A.O. No. 15-05120-03027A
v.
Ken No. 4 North Mine
ERNIE BROCK,
RESPONDENT

ORDER DISMISSING PROCEEDING

Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty filed by the petitioner against the respondent on September 22, 1981, pursuant to section 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(c). The proposal seeks a civil penalty assessment in the amount of $300 against the respondent for an alleged violation of mandatory safety standard 30 CFR 75.200.(FOOTNOTE 1) The alleged violation is based on certain conditions and practices detailed in an imminent danger order no. 0795972 issued pursuant to section 107(a) - 104(a) of the Act on May 21, 1979. The order was issued to Peabody Coal Company for the alleged violation which petitioner asserts took place at the above captioned mine, and petitioner asserts that the named respondent in this case was employed at the mine as a foreman. Petitioner further alleges that on or about May 21, 1979, and for a period of approximately one week prior thereto, respondent, acting as an agent of Peabody Coal Company, knowingly authorized, ordered, or carried out Peabody's violation of the cited section(s).

Respondent filed his answer to the proposal on October 7, 1981, denying any violation of section 110(c) on his part. He does admit to the fact that the mine is subject to the Act, that he was employed ~202 as a mine foreman at the time the citation issued, and does not dispute the fact that the citation was issued and served on Peabody Coal Company.

Motion to dismiss

By motion filed January 20, 1982, respondent's counsel moves for a dismissal of this case on the grounds that the respondent has been prejudiced by the extreme delay between the time the citation was issued on May 21, 1979, and the service of MSHA's proposed civil penalty assessment on the respondent on July 20, 1981. In support of the motion to dismiss, counsel states that after the citation was issued, Peabody Coal Company filed an application for review of the citation and an expedited hearing was held on this application on June 13-14, 1979. Counsel further states that respondent Brock testified in Peabody's behalf at the hearing, and while Peabody was represented by counsel, respondent Brock was not as he had not been charged with any violation. Since Mr. Brock testified to the events surrounding the issuance of the citation, counsel maintains that his participation in those events has been well-known to MSHA since at least June 13-14, 1979.

In further support of his motion, respondent's counsel points to the fact that when MSHA served its proposed assessment on the respondent July 20, 1981, more than two years had passed since the citation was issued and since the hearing where all the facts surrounding the event in question were laid open to MSHA. Since it is now January, 1982, some three years after the citation issued, counsel asserts that MSHA's delay in bringing this case is completely inexcusable and inherently prejudicial to the respondent.

In support of the claim of prejudice, respondent's counsel states that the Ken No. 4 North Mine last produced coal on October 12, 1979. Its entrance has been sealed since November 19, 1979. All reclamation activities associated with this mine, including covering the mine entrance with earthen material, has been concluded since January, 1980, and not until a year and a half following closure and sealing of this mine had passed did MSHA propose to assess a penalty against respondent Brock. The sealing of the mine is supported by an affidavit by Peabody's Vice-President of Underground Operations, Eastern Division, Henderson, Kentucky.

With regard to the instant case filed against the respondent Brock, counsel states that the condition of the roof in the mine in question would be the central issue to be resolved in this penalty proceeding. Since the mine is available to no one, and since the evidence "has long been literally covered up", counsel maintains that a proper defense cannot be prepared on respondent Brock's behalf, and he attributes this to MSHA's excessive delay in bringing this case. Counsel maintains that the prejudice test established by the Commission in Secretary of Labor v. Salt Lake County Road Department, Docket No. WEST 79-365-M (July 28, 1981) and reiterated in Secretary of Labor v. The Anaconda Company, Docket No. WEST 81-94-M (August 13, 1981), is well met in the instant case, and that MSHA's delay is in blatant disregard of the "reasonable notice" provisions of the Act and respondent Brock has been prejudiced thereby.
~203
On January 26, 1982, petitioner filed a response to the motion to dismiss. Petitioner does not concede that its delay has been unreasonable, and it opposes respondent's motion to dismiss. However, petitioner states that it has determined that there is insufficient evidence to prove its case and moves for an order approving withdrawal of its civil penalty proposal.

Petitioner's motion to withdraw its proposal for assessment of civil penalty on the ground that there is insufficient evidence to prove its case is DENIED. The matter concerning the sufficiency of evidence is a judgment that petitioner should have made before filing its case in the first place and before subjecting the respondent to a prosecution under section 110(c).

Respondent's motion to dismiss on the ground that MSHA's delay has prejudiced his opportunity to reasonably prepare and present a defense is GRANTED, and this case IS DISMISSED WITH PREJUDICE.

George A. Koutras
Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 Although the proposal filed by the petitioner makes reference to section 75.200, a copy of the supporting citation attached to petitioner's proposal reflects that the "part and section" cited by the inspector was changed from section 75.200 to section 75.202.