Old Ben Coal Company
Old Ben Coal Company (FMSHRC LAKE 91-53-R, LAKE 91-54-R): Inspection-access citation and order vacated
Apply this to your situation
This order from 1992 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.
Plain-English summary
Old Ben Coal Company was cited and ordered to abate after it declined to provide an MSHA inspector with underground transportation during a quarterly inspection. The company provided elevator access and the inspector continued inspecting on foot, but MSHA alleged that the refusal impeded the inspection under section 103(a) of the Mine Act. Judge Koutras found that the record did not show it was difficult or impossible for the inspector to conduct the inspection on foot, and that the citation and order did not establish that required element. The judge therefore vacated both the section 104(a) citation and the section 104(b) order.
Decision snapshot
- Governing authority: 30 U.S.C. § 813(a); 30 U.S.C. § 814(a); 30 U.S.C. § 814(b)
- Outcome: Citation No. 3537139 and Order No. 3537140 were vacated.
- Key point: Refusing available mine transportation may implicate inspection access, but MSHA had to prove that walking made the inspection difficult or impossible.
Full text (FMSHRC public release)
CCASE:
OLD BEN COAL V. MSHA
DDATE:
19920110
TTEXT:
OLD BEN COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 91-53-R
: Citation No. 3537139; 1/9/91
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 91-54-R
ADMINISTRATION (MSHA), : Order No. 3537140; 1/9/91
Respondent :
: Mine No. 26
: Mine ID 11-00590
SUMMARY DECISIONS
Appearances: Timothy M. Biddle, Esq., Thomas C. Means, Esq.,
Crowell & Moring, Washington, D.C., for the
Contestant;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Respondent.
Before: Judge Koutras
Statement of the Proceedings
These proceedings concern Notices of Contest filed by the
contestant (Old Ben) pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, challenging the legality of a
section 104(a) citation and a section 104(b) order issued on
January 9, 1991, by MSHA Inspector Robert S. Stamm. The citation
and order are as follows:
Section 104(a) non-"S&S" Citation No. 3537139, issued at
8:03 a.m., cites an alleged violation of section 103(a) of the
Act, and the cited condition or practice is stated as follows:
While attempting to perform the on-going mandated
quarterly Safety and Health inspection of the entire
underground Mine 26, MSHA Inspector Robert Stamm was
refused mantrip or other modes of transportation on the
8:00 AM to 4:00 PM shift on January 9, 1991, on
instructions from Robert Roper, Mine Superintendent.
This precluded Mr. Stamm's ability to properly travel
and inspect the mantrip and associated areas of the
mine, and impeded the inspection.
The inspector fixed an abatement time of 8:18 a.m.,
January 9, 1991, and thereafter at 8:19 a.m. that same day he
issued section 104(b) Order No. 3537140, citing an alleged
violation of section 103(a) of the Act. The order reflects that
"no area" of the mine was withdrawn, and the condition or
practice cited is described as follows on the face of the order:
Roger Roper, Mine Superintendent, failed to abate
104(a) citation number 3537139. Roger Roper, Mine
Superintendent, denied MSHA Inspector Robert Stamm the
right to ride the mantrip transportation, which impeded
his efforts to perform mandated inspection activities
of the mantrip and associated areas.
The respondent (MSHA) filed timely answers to the contests
and asserted that the citation and order were properly issued for
violations of section 103(a) of the Act. Old Ben subsequently
filed a Motion for Summary Decision pursuant to Commission
Rule 64, 29 C.F.R. 2700.64, accompanied by four (4) pre-trial
depositions of the inspector, his supervisor, and MSHA's district
and sub-district managers. MSHA filed a reply to Old Ben's
motion, and Old Ben responded with a reply brief.
After consideration of Old Ben's summary decision motion,
and MSHA's reply, I denied the motion after concluding that
several issues precluded summary decision, and the matter was
scheduled for hearing on the merits in St. Louis, Missouri. Old
Ben subsequently filed a motion seeking clarification of the
denial, and requested that I identify the material facts which
required an evidentiary hearing. I thereupon issued an order
clarifying the issues for trial, and the parties subsequently
requested a continuance of the hearing in order to file further
stipulations which they believed would enable me to proceed with
a summary decision of the matter without an evidentiary hearing.
The continuance was granted and the parties filed their
stipulations.
Issues Presented
The principal issue in these proceedings is whether Old Ben
violated section 103(a) of the Act when it refused underground
mine transportation to Inspector Stamm during his inspection of
January 9, 1991. Stated more specifically, the issues are
whether or not Inspector Stamm had a legal right pursuant to
section 103(a) to transportation furnished by Old Ben to aid him
in his inspection, and whether or not Old Ben's refusal to
provide such transportation constituted a denial of Mr. Stamm's
right of entry for purposes of conducting his inspection, and
precluded or impeded his inspection. Additional issues raised by
the parties are identified and disposed of in the course of my
decisions.
Stipulations
The parties stipulated to the following:
1. Old Ben's No. 26 Mine is subject to the Mine Act.
2. The Administrative Law Judge has jurisdiction over this
proceeding.
3. Citation No. 3537139 ("Citation ") and Order No. 3537140
("Order") were properly served on Old Ben.
4. The parties have agreed to put this case before the
Administrative Law Judge for decision based on stipulated facts
and the various briefs previously filed.
5. Beginning on December 13, 1990 and consistently there-
after (until abatement of the Order), Old Ben declined to furnish
transportation around the Mine to Inspector Stamm, but no
violation of the Act was alleged until the denial of
transportation on January 9, 1991.
6. Because elevator transportation between the surface and
the underground workings at the bottom of the shaft was necessary
for access into and out of the Mine, Old Ben provided it to
Stamm. Old Ben did not provide transportation within the
underground areas of the Mine because it believed that Stamm
could perform his inspection on foot.
7. Beginning on December 13, 1990 and continuing until
January 15, 1991, Stamm continued to conduct his regular 4th
quarterly inspection of the Mine on foot, accompanied also on
foot by representatives of the miners and Old Ben.
8. During this period of time, other MSHA inspectors who
came to the Mine were provided with transportation around the
Mine by Old Ben.
9. The Mine is large, with several working faces during
this time frame; the distances to be travelled from the shaft to
the working faces varied from 2,400 feet (0.4 miles) for the
closest face and up to 10,000 feet (2.1 miles) for the farthest.
10. Most of the mine (e.g., the bleeder entries) can only be
inspected on foot; all of the active workings could be reached
within a 30 to 40 minute walk from the bottom of the shaft.
11. During the time Stamm was denied transportation,
transportation was otherwise available and could have been
provided.
12. The Order was abated by Old Ben's agreement to transport
Stamm to the location where he wished to commence his daily
inspection and then to transport him back to the shaft at the end
of that inspection, but not from place to place in the Mine
during the interval between those times.
13. Stamm was not denied access to the mantrip for the
purpose of inspecting it and that is not an issue in this
proceeding.
14. It took Stamm three days longer to complete his 4th
quarterly inspection (when transportation had been denied for
over a month) than his 3rd quarterly inspection (when
transportation had been provided). This may largely be explained
by the extra time it took Stamm to walk into and out of the Mine
in the 4th quarter.
15. Stamm issued more citations and orders during the
subject 4th quarter than during the 3rd quarter, and
substantially more than during any prior 4th quarter in recent
years or in any quarter back through 1986.
16. MSHA believes that the denial of transportation slows
down inspectors and means that inspections take longer to
complete.
17. MSHA inspections may be conducted by multiple inspectors
simultaneously.
18. MSHA inspectors are free to begin their inspections at
any time of the day, anywhere in the Mine they choose, without
prior notice.
19. MSHA's Program Policy Manual provides that a denial of
MSHA's statutory right of entry can occur indirectly, but
"[t]here must be a clear indication of intent and proof of
indirectly denying entry." Indirect denial of MSHA's right of
entry occurs when there is a "[r]efusal to furnish available
transportation on mine property when it is difficult or
impossible to inspect on foot."
-
Prior to December 13, 1990, Old Ben had complained to
Stamm's supervisors that he was improperly conducting himself by
issuing an excessive number of citations and orders, including
many which they believed were legally defective, and by taking
directions from the UMWA. Old Ben asserted that this was
disrupting their operations because Stamm went to multiple areas
of the Mine during each inspection day. MSHA acknowledges that
Old Ben made these complaints but submits that MSHA inspectors
are supposed to look into problems that they are told about by
miners.-
Of the approximately 285 citations and orders issued by
Stamm during his 1990 3rd and 4th quarterly inspections, some 79
were vacated or modified by MSHA as a result of the 30 C.F.R.
Part 100 conference process or after Old Ben had contested them
at the Commission. -
Although Old Ben contested additional citations and
orders issued by Stamm, those cases were not set for hearing
until many months later, offering no immediate relief from what
Old Ben believed were improper and over-zealous enforcement
actions. MSHA notes that Old Ben did not file motions to
expedite these proceedings and Old Ben notes that it did not
believe expedited hearings would have been granted since it had
abated the alleged violations. -
The only two mines in MSHA's District 8 which were put
on MSHA's Special Emphasis program (based on the number of
violations issued) are the two which Stamm had been inspecting.
MSHA questions the relevance of this fact in light of other
possible explanations. -
Old Ben's Safety Director Dave Stritzel was an MSHA
inspector for 11 years before he was hired by Old Ben in 1982.
He served as a regular inspector from 1971-1976 and in 1976 was
promoted to supervisory technical specialist (health). -
As an MSHA inspector, Stritzel believed that there was
no legal requirement that mine operators had to furnish
transportation all around their mines to MSHA inspectors.
Stritzel believed, based upon his experience as an MSHA inspector
and his examination of the Mine Act and regulations, that
providing in-mine transportation to an MSHA inspector, like
offering him coffee in the Mine office, was voluntary on a mine
operator's part and that an operator could cease to offer this
courtesy to an obnoxious inspector, to an inspector who abused
the privilege, or to an inspector who for any reason was deemed
no longer deserving of such favors. MSHA notes that none of its
current employees who worked with Stritzel in the District can
remember him voicing these beliefs while he was an inspector.
MSHA further notes that there never has been any official MSHA
policy or interpretation of the Mine Act consistent with those
beliefs. Old Ben responds that many of Stritzel's colleagues
with whom he would have discussed this at MSHA are no longer with
the agency. -
Because of Stritzel's belief as stated in the foregoing
paragraph, he believed that Old Ben was under no legal obligation
to provide transportation to Stamm around the Mine, other than
access into and out of the Mine by elevator, since he could
perform his inspections on foot; accordingly, it was pursuant to
Stritzel's direction that Old Ben refused to offer mantrip
-
transportation to Stamm on December 13, 1990 and thereafter,
including January 9, 1991.
27. When transportation is provided to an MSHA inspector
other than Stamm, the usual procedure is that a company safety
representative drives them to a location specified by the
inspector; they park the vehicle while the inspector examines
conditions in that area; on occasion, the group may then drive
the vehicle to other locations specified by the inspector. At
the end of the inspection, the inspection party drives the
vehicle back to the shaft.
28. Old Ben believes that its motive for not offering
transportation to Stamm is not relevant to this proceeding, any
more than it is relevant to whether one may rightfully invoke
one's 5th amendment right not to testify, that one is doing so
because he does not like the police investigator; that is, since
Old Ben believes that the Mine Act does not in the first place
require a mine operator to transport MSHA inspectors around its
mine, Old Ben believes that its decision to voluntarily offer
such transportation to others but not to Stamm cannot be a
violation. MSHA believes that under these facts transportation
is required by the Mine Act and that Old Ben's motives are
relevant to this proceeding.
29. Old Ben clarifies that its statement on brief that "only
in the limited range of circumstances where the denial of
transportation effectively precludes MSHA's ability to exercise
its right of entry could there be a section 103(a) violation in
declining to chauffeur the inspector" refers to circumstances
where operator-provided transportation is necessary to access all
or part of a mine to inspect it, as with the elevator to the
underground workings of Old Ben's No. 26 Mine.
Deposition Testimony
Old Ben took the depositions of Mr. Stamm and his MSHA
superiors and filed them in support of its summary decision
motion and supporting arguments. MSHA also relies on these
depositions.
MSHA Inspector Robert Stamm, testified that his quarterly
inspection of the mine began on October 29, 1990, and that prior
to this time he had conducted another inspection beginning on or
about July 6, 1990, and ending on approximately October 24, 1990.
He was at the mine on a regular basis except for vacation
periods, and this was the only mine he was inspecting during
these time periods. He confirmed that on December 13, 1990,
Mr. Bruce Harris, the mine safety manager, advised him that the
company would no longer provide him with transportation while he
was conducting his regular inspections. Mr. Harris could not
provide him with any reason for the denial of transportation.
Mr. Stamm informed his supervisor Steve Kattenbraker about the
matter on December 13, 1990 (Tr. 6-10).
Mr. Stamm stated that prior to December 13, 1990, he would
ride in a diesel pickup truck driven by someone in the safety
department to the area that he was inspecting. The truck would
normally wait for him while he conducted his inspection, and it
would then take him to the next area to continue his inspection.
After Mr. Harris informed him that no transportation would be
provided Mr. Stamm wrote up his notes and then proceeded to walk
to the area to conduct his inspection, and he was accompanied by
Mr. Harris and the miner's representative and they all walked
(Tr. 10-12). Mr. Stamm confirmed that he subsequently prepared a
memorandum on December 20, 1990, at the request of subdistrict
manager Sakovich, documenting Mr. Harris' refusal to provide him
with transportation (Tr. 16).
Mr. Stamm stated that except for December 19, 1990, when he
rode a mantrip into the mine and walked, his inspections during
the period December 13, 1990, and January 9, 1991, were all
conducted on foot. He confirmed that in the past, when he
conducted inspections, he usually rode into the area that he was
to inspect, the vehicle would be parked, and he would conduct his
inspections on foot. The only difference in this routine after
December 13, 1990, was the fact that he had to walk to the
locations where he was to conduct his inspections (Tr. 18).
Mr. Stamm confirmed that after December 20, 1990, and before
arriving at the mine on January 9, 1991, he spoke with
Mr. Sakovich about the transportation problem, and that on
January 7, Mr. Sakovich "told me that when I went to the mine to
try and ride in on a mantrip, see if they would provide
transportation in a mantrip." Mr. Stamm confirmed that he
followed these instructions and went to the mine on January 9,
and traveled underground on the elevator. He proceeded to the
empty mantrip and climbed in and sat down. Mr. Harris then
informed him that he was not permitted to ride the mantrip.
Mr. Stamm asked if he was being refused transportation, and
Mr. Harris responded "yes" (Tr. 24).
Mr. Stamm stated that after getting out of the mantrip he
issued a citation to Mr. Harris. He stated that he issued it
"due to instructions received from district manager Mike
Sakovich" on or about January 8, 1991, after he wrote his
January 7, 1991, memorandum to Mr. Sakovich (Tr. 26). Mr. Stamm
stated that Mr. Sakovich was acting on instructions, and he
assumed "it was the headquarters in Arlington" because
Mr. Sakovitch gave him typed suggested wording for the citation
and order which he issued (Tr. 27-28).
Mr. Stamm stated that after verbally issuing the citation at
approximately 8:30 a.m., he went to the surface to write it out
and advised Mr. Harris that he had 15 minutes to obey the
citation and that he would have to issue an order if
transportation were not provided. Mr. Stamm then called
Mr. Sakovich, issued the citation and order, and returned
underground to continue his regular inspection by walking. He
stated that he walked the third north belt conveyor entry and
that it took him approximately 45 minutes or an hour to walk one
way, and he ended up where the belt conveyor starts, and left the
underground area between 1:00 p.m. and 1:30 p.m., and left the
mine at 2:25 p.m., and returned to his office (Tr. 33, 36).
Mr. Stamm confirmed that the order was terminated on
January 15, 1991, after Mr. Harris informed him that
transportation would be provided for him and that a diesel truck
would take the inspection party where he wanted to go (Tr. 37).
Mr. Stamm explained that the phrase "or other modes of
transportation" which appears in the citation refers to the
diesel pickup truck which the mine safety department normally
drove for inspection purposes (Tr. 38). He confirmed that he did
not ask Mr. Harris to provide him with some other mode of
transportation other than the mantrip when he was refused a ride
in that vehicle (Tr. 39).
Mr. Stamm confirmed that Roger Roper is the mine
superintendent, and that Mr. Harris told him that Mr. Roper had
issued the instructions that no mode of transportation would be
provided for him (Tr. 40). Mr. Stamm explained the cited
conditions as follows at (Tr. 40-42):
Q. Okay. Now, you -- say that it precluded your, um,
the ability to properly travel and inspect the mantrip.
Do you see those words in there?
A. Yes.
Q. All right. What do you mean by that, sir?
A. Well, what we would normally do is if we want to
travel the travel road into the unit, ride in the
mantrip to see the condition of the traveled road,
whether it be too rough or something that would affect
the ability to operate that piece of equipment, and
also while you were riding this mantrip to inspect it
for steering, the brakes and things of this nature.
Q. Did you tell Mr. Harris that you wanted to inspect
the mantrip that morning?
A. No.
Q. Um, you say that it -- and I'm quoting here again,
"ability to properly travel". Let me stop there. What
did you mean by, "properly travel"?
A. To ride that travel way. Like I say, to check for
the condition of the travel way itself.
Q. And you said that, um, mention of the word and
associated areas of the mine. What do you mean by
that?
A. Well, the associated areas would be part of the
travel road from the shaft to the working section.
Q. And then you go on and conclude by saying ability,
and impeded the inspection -- I'm quoting, "and impeded
the inspection". And why did it impede your
inspection?
A. Because when you have to walk you can't get to the
working section as quickly as you would like to get
there to examine the things that we were required to
examine.
Q. And with respect to the wording, all of the wording
under paragraph eight on the citation under condition
or practice, um, you -- I think said earlier that you
were sort of given a narrative to put in there, and
that's what you put in there; is that right?
A. Right.
Q. So these are not your words, these are someone
else's words essentially?
A. Yes.
Q. But you agree with them, do you, sir?
A. Yes.
Mr. Stamm stated that the 15 minute abatement time that he
established for compliance with the citation "was suggested" as
enough time to allow him to ride the mantrip. He confirmed that
the mantrip eventually filled up with people and he observed it
leave while he was writing out his notes underground (Tr. 43).
Mr. Stamm confirmed that he cited a violation of section 103(a)
of the Act because of MSHA's policy interpretation of that
section. He stated that the policy states "something to the
effect that indirect denial would be if transportation was not
provided and the inspection could not be performed, it would be
impossible to complete the inspection or impeded the progress,
something to that effect" (Tr. 46).
On cross-examination, Mr. Stamm confirmed that he is
required to conduct mine inspections four times a year, and that
the inspections "are always on a time schedule" (Tr. 54). He
further explained as follows at (Tr. 56-57):
Q. In terms of conducting a complete inspection, AAA
inspection, as you've mentioned was the responsibility
when you went underground on January 9, 1991. Were
there reasons pertaining to your inspection
responsibilities that you needed to get to any section
in a relatively short amount of time the transportation
that you were refused would have assisted you in doing
so?
A. On that date, um, I can't -- I can't answer that.
I don't know if that date that would have altered my
inspection because had I planned on going to this
working section with transportation I would have done
that. Since I was not provided, then I would have
altered my inspection to go to another area of the coal
mine with time when I'm working an eight hour day.
Q. And how would that interfere with your ability to
compete an AAA inspection in terms of the area you
would want to go to?
A. Well, it would either take a lot longer days than
normal than what we normally would perform or possibly
by walking every area in a coal mine you possibly
wouldn't get the inspection done within the allowed
time.
Q. Okay. And, um -- and you were in terms of your
transportation when you take this equipment that you
normally took, was it part of your responsibilities
with AAA to inspect the area as you entered into the
area from this bottomless shaft to wherever you might
be going?
A. Yes, I'm inspecting throughout wherever I'm going.
Q. Does that matter whether it's one day or the next
day or whatever day it is?
A. No, you're just always constantly inspecting and
looking.
Mr. Stamm stated that he knew of at least four inspectors
who were provided transportation throughout the mine while he was
conducting his inspection (Tr. 57). He confirmed that prior to
December 13, 1990, he was always provided underground
transportation to conduct inspections and that transportation has
always been provided him unless there was an equipment breakdown
(Tr. 58).
On re-direct examination, Mr. Stamm stated that he has to
complete his inspections in a "timely manner" so that he can
complete four a year. He further confirmed that it is an MSHA
practice to perform four regular inspections a year on a calendar
quarter basis, and there is nothing to preclude more than one
inspector conducting a regular inspection (Tr. 59).
Steven R. Kattenbraker, MSHA supervisory inspector, stated
that the "transportation situation" concerning Mr. Stamm first
came to his attention on December 13, 1990, after Mr. Stamm had
issued an order shutting down the longwall. Mr. Stamm informed
him that he was denied transportation and would have to walk back
in to abate the order (Tr. 10). Mr. Kattenbraker believed that
the refusal to provide transportation was the result of
complaints by Old Ben that Mr. Stamm "was writing a lot of
violations". He explained that he "conferenced" many of
Mr. Stamm's violations and that the working relationship "was not
the best" (Tr. 12). Mr. Kattenbraker confirmed that Mr. Stamm
had been refused transportation from December 13, through the
rest of the year, and he identified copies of Mr. Stamm's
memorandum of December 20, 1990, and January 7, 1991, and also
referred to additional memorandums by inspectors Michael Pace and
Robert Cross, documenting the fact that they conducted section
103(i) spot inspections at the mine during the last half of
December, 1990, and had been provided transportation (Tr. 16-18).
Mr. Kattenbraker confirmed that he was present in the MSHA
field office at the time the transportation situation involving
Mr. Stamm was discussed by telephone by Mr. Sakovich and
Mr. Childers with representatives of the MSHA solicitor's office
in Arlington, Virginia (Tr. 23). The result of that conversation
was that "we decided upon a course of action" and a citation and
order were issued on January 9, 1991 (Tr. 24). Mr. Kattenbraker
confirmed that Mr. Stamm was given suggested wording to include
in the citation and order which he issued (Tr. 24).
Mr. Kattenbraker stated that from January 9, 1991, when the
order was issued to January 15, 1991, when it was terminated, he
"monitored" the situation. He confirmed that other than the
denial of transportation, Mr. Stamm was not denied entry to the
mine or barred from going anywhere in the mine, and that he
conducted inspections on several days during this time period
(Tr. 31). Mr. Kattenbraker confirmed that only one inspector was
used on the inspection which began in October, 1990, and that he
decides how many inspectors to use during any given inspection
(Tr. 32).
Mr. Kattenbraker confirmed that he met with company safety
officials Dave Stritzel and Bob McAtee on December 14, 1990, at
Mr. Stritzel's request, and that Mr. Stritzel was concerned about
Mr. Stamm. Mr. Kattenbraker explained this concern as follows at
(Tr. 36):
THE WITNESS: Specifically there were some statements
made that Mr. Stamm was issuing violations that were
not in their minds violations, that he was perhaps --
I've lost my train of thought here. He was perhaps
more, I don't know what the word is, but he was too
strong on some of the orders. They just had an order
the night before, and they were very upset about the
issuance of the order, did not feel it was warrantable,
and made some general statements as to whatever takes
place now, it can't replace the 12 hours of production,
things like, that.
Mr. Kattenbraker stated that during the meeting with
Stritzel and McAtee "a statement was made that Mr. Stamm would
not be provided transportation as of yesterday" (Tr. 35).
Mr. Kattenbraker believed that the denial of transportation to
Mr. Stamm was a "type of denial" of his responsibility to conduct
an inspection (Tr. 42). Mr. Kattenbraker confirmed that he
visited the mine a week after Christmas, 1990, accompanying
another inspector on a spot inspection, and they were not denied
transportation (Tr. 42-45).
Mike Sakovich, MSHA sub-district manager, stated that he
first became aware of a transportation problem on or about
December 14, 1990, when Mr. Stamm informed him that he was told
that he would not be provided transportation. Mr. Stamm did not
further explain why he would be denied transportation, nor did he
indicate his understanding as to the reasons why he would be
denied transportation.
Mr. Sakovich stated that he "did not do too much of
anything" at the time he spoke with Mr. Stamm and simply told
Mr. Stamm "to go to the mantrip, and if they refused
transportation to just go about his business and do his job"
(Tr. 6-7). Since Mr. Stamm had inspection duties which did not
require him to have transportation, Mr. Sakovich could not recall
his next contact with Mr. Stamm. However, on December 19, 1990,
he had a conversation with Mr. McAtee, and he informed Mr. McAtee
that "they were impeding Stamm's inspection by not permitting him
to ride available transportation" (Tr. 10). Mr. Sakovich
explained that the number 26 mine is a large mine and that if an
inspector is not permitted to use available transportation, he
would double or triple the time it takes to inspect the mine,
there would be "a lot of lost motion", and he would be traveling
the same area on foot day after day and would "have a hard time
covering the mine". Mr. Sakovich expressed his doubt that
Mr. Stamm could inspect the mine once a quarter by walking
(Tr. 10-11).
Mr. Sakovich stated that on January 2, 1991 he discussed the
transportation situation with MSHA field supervisors Kattenbraker
and Wolf in Mr. Stamm's presence, and that on January 3, 1991, he
advised district manager Maurice Childers, for the first time,
about the situation. In order to resolve the matter,
Mr. Sakovich suggested to Mr. Childers that a citation "might or
should be issued" (Tr. 12). Mr. Sakovich confirmed that his
research reflected that section 103(a) of the Act did not
specifically address "indirect denial", but the MSHA manual did,
and that Mr. Childers agreed with his assessment of the matter
(Tr. 14).
Mr. Sakovich confirmed that he next discussed the matter of
"indirect denial" with Mr. Childers on January 8, 1991, and that
Mr. Larry Beeman, MSHA's Arlington, Virginia, office was also on
the telephone line during the discussion which was initiated by
Mr. Childers. Following this conversation, Mr. Sakovich was
contacted by an unidentified attorney, and as a result of all of
these discussions, he (Sakovich) instructed Mr. Stamm as to the
procedure that he was to follow, and this was "played out in what
happened the next day with the citation to the letter"
(Tr. 17).
Mr. Sakovich confirmed that the narrative description of the
cited "condition or practice" included in the citation had
previously been faxed to his (Sakovich) office by the MSHA
Arlington office where it had been prepared, and that Mr. Stamm
simply copied it down on the citation form (Tr. 17).
Mr. Sakovich also confirmed that he had instructed Mr. Stamm to
go to the mine and to go to the underground mantrip, and get in
it. If "he was refused, he was to issue a citation giving them
15 minutes to obey. If they took no action, he would come out on
the surface and call me, and then I would instruct him to write
the order, and that's exactly the procedure that was followed"
(Tr. 18).
Mr. Sakovich identified Roger Roper as the mine
superintendent and the "agent of the operator". Mr. Sakovich
believed that Mr. Roper gave the instructions that Mr. Stamm
would not be permitted to ride any transportation, but he did not
personally discuss the matter with Mr. Roper (Tr. 20).
Mr. Sakovich stated that he received a telephone call on
January 9, 1991, from Old Ben official David Stritzel, and that
Mr. Stritzel was "a little hostile and upset", and wanted to
discuss Mr. Stamm (Tr. 19). Mr. Sakovich confirmed that he had
previously met with Mr. Stritzel, Mr. McAtee, and Mr. Stamm's
supervisor (Kattenbraker) on or about December 14, 1990, and that
Stritzel and McAtee "were complaining about Stamm's performance"
(Tr. 24). He believed that the complaints concerned Mr. Stamm's
talking to the United Mine Workers and that "he was writing
violations that were not citations for things that were not
violations, stuff of that nature" (Tr. 25).
Maurice S. Childers, MSHA District No. 8 Manager, testified
that he is the direct supervisor of Michael Sakovich and Steve
Kattenbraker and indirectly supervises Inspector Stamm. He
confirmed that he first became aware of a transportation problem
concerning Mr. Stamm on January 3, 1991, when Mr. Sakovich
advised him that Mr. Stamm was not permitted to ride a mantrip.
Mr. Childers instructed Mr. Sakovich to tell Mr. Stamm "not to
force himself on it, that he would proceed with his inspections"
(Tr. 6). Mr. Childers also confirmed that Mr. Stamm was not
being denied entry to the mine and that it was only "a local
transportation issue" (Tr. 6).
Mr. Childers stated that Mr. Stamm followed his instructions
of January 3, 1991, and that his conversation with Mr. Sakovich
was brief on that day. Mr. Childers subsequently spoke with
MSHA's attorneys, and he confirmed that the wording for the
citation issued by Mr. Stamm on January 9, 1991, was prepared by
the Solictor's office in Arlington, Virginia, and communicated to
him. Mr. Childers agreed with the wording, and he believed that
there was a violation of section 103(a) of the Act because "the
company was impeding the regular inspection of the mines by
refusing Mr. Stamm transportation, you know, underground to his
wherever...whatever area he was going to" (Tr. 10). He confirmed
that the "impeding the inspection" language appears in MSHA's
program policy manual as part of the explanation of
section 103(a).
Mr. Childers confirmed that he instructed Mr. Sakovich to
have the citation issued by Mr. Stamm, and that Mr. Stamm was to
issue an order five minutes later if the operator did not comply
(Tr. 11). He also confirmed that he sent a letter to Mr. Roper
on January 9, 1991, and he confirmed that it was drafted by
MSHA's Arlington office and faxed to him (Tr. 13). Mr. Childers
stated that he subsequently received a telephone call from
Mr. Markel Chamness, Old Ben's vice-president for underground
operations, and Mr. Chamness advised him that he would provide
transportation for Mr. Stamm (Tr. 14).
Mr. Childers confirmed that MSHA's regulations do not state
that transportation shall be provided for inspectors. However,
he indicated that it has been an industry practice throughout
Illinois to provide transportation for inspectors and that "it's
never been a problem before". He also stated that there are
times when an inspector must ride the mantrip, and when he is
not, it has also been a practice to provide transportation for
the inspector, the company official, and the walkaround (Tr. 15).
Mr. Childers agreed that if no transportation is available, the
company need not purchase a special vehicle for the inspector,
and if a piece of equipment is not available because it is broken
down or operating elsewhere, the company is not required to make
a special effort to supply transportation. He confirmed that an
inspector is not authorized to displace regular workers who may
need transportation, and that if an inspector finds that a
mantrip has left or was filled with workers, the inspector would
be expected to start walking to conduct his inspection and that
"they do not sit and wait" (Tr. 17).
Mr. Childers stated that the "local transportation" provided
by the contestant is in a sense "a courtesy to the inspectors and
helpful to the operator, too" (Tr. 18). He confirmed that an
operator is not obliged to provide an inspector with lunch,
safety equipment, or clothing (Tr. 18).
On cross-examination, Mr. Childers stated that there are
times when it is necessary for an inspector to get to a mine area
in the least amount of time as possible, and as an example, he
cited a situation where an inspector intends to go to an area two
miles away with an inspection party, and that it would be
beneficial for the inspector to complete his inspection as
quickly as possible. He also indicated that an inspector must
inspect an actual ongoing complete mining cycle to determine
whether the equipment is being properly operated, whether there
is adequate ventilation, and "things of that nature, that's part
of his routine inspection" (Tr. 20). He believed that expedient
transportation would assist the inspector in doing this.
Mr. Childers stated that he was not aware that Mr. Stamm was
denied transportation because of the unavailability of a mantrip,
and as far as he knew transportation was available for inspectors
to conduct their inspections. He confirmed that inspectors are
required to conduct four underground inspections a year, and that
mobile transportation would assist them in achieving that result.
He believed that denying an inspector transportation would
interfere with his accomplishing the required inspection because
of the distances that he would be walking, and the inspection
would take several weeks longer. Although he did not know the
distances or all of the areas which would be travelled by the
inspector, he stated that "in this mine it would hinder
completing the required number of inspections" (Tr. 21-22). He
also confirmed that an inspector is responsible for observing any
imminent dangers or other safety concerns, and to insure that any
cited violative conditions are corrected. The use of mobile
transportation would help expedite his inspection in these
situations (Tr. 23).
On re-direct, Mr. Childers agreed that there are situations
when an inspection may be expedited by using more inspectors, and
that his testimony that an inspection would be delayed for
several weeks assumed that only one inspector was involved
(Tr. 25). He confirmed that Mr. Roper's name is included in the
citation and order because he is the mine superintendent and
because "he is the top guy", and it was his understanding that
Mr. Roper issued the instructions to refuse transportation for
Mr. Stamm. Mr. Childers confirmed that if Mr. Roper had refused
transportation to all inspectors, his views in this matter would
still be the same (Tr. 26).
Old Ben's Arguments
Old Ben argues that the citation and order are invalid
because section 103(a) of the Act does not require mine operators
to furnish transportation to MSHA inspectors in order to
facilitate their inspections. Old Ben asserts that not only does
the statute itself not impose such a duty on mine operators, but
the legislative history also does not indicate any congressional
intent that mine operators would be required to afford
transportation to MSHA inspectors. Old Ben further states that
there is no case law supporting MSHA's claim to a right of
transportation, and even MSHA's own interpretive guidelines do
not go that far.
Old Ben maintains that nothing in section 103(a) of the Act
in any way requires that transportation must be furnished to the
Secretary or her authorized representative, and that a mine
operator's duty is a passive one and limited to an obligation not
to block or otherwise interfere with the Secretary's "right of
entry". Old Ben argues that this same scheme is echoed and
reinforced in section 108(a)(1) of the Act where the Secretary
has been provided with a remedy when an operator has denied the
Secretary her rights under 103. Again, the operator's
obligation (the breach of which entitles the Secretary to
injunctive relief) is passive: it is to guide the inspection,
not to help the Secretary conduct it, not to speed it, ease it,
or otherwise make it a more comfortable and relaxing experience.
Section 108(a)(1) provides for judicial relief if, in pertinent
part, the operator "interferes with, hinders or delays" the
Secretary, "refuses to admit [her] to the . . . mine," "refuses
to permit the inspection," or "refuses to permit access to and
copying of . . . record . . . " Just as the operator is not
required to copy the records for the Secretary, just to "permit
access and copying" of them, Old Ben concludes that it is not
required to transport the Secretary around the mine, just to
permit her to inspect it without a warrant.
Old Ben concludes that although Congress gave the Secretary
a unique power to enter and inspect a mine without operator
consent, and without a search warrant, it did not go as far as
the Secretary now would like. Old Ben points out that while
Congress gave the Secretary a right of entry, it did not also
give her the novel and unheard of right to be transported, nor
did it give her the power of requiring the mine owner to convey
her representatives as passengers in mine vehicles so that they
"could be whisked around the mine to speed their inspection of
it". Old Ben further points out, however, that Congress did not
entirely ignore the issue of transportation in the mine when it
required that mine operators provide transportation for injured
persons in emergencies. Old Ben concludes that this shows that
Congress knew how to grant a right of transportation when it
intended to, by expressly providing one for injured persons.
Old Ben maintains that if section 103(a) were construed not
only to provide the Secretary with a right of access, but also to
require mine operators to transport her inspectors all around the
mine, the statute would have to be ruled unenforceably vague
since it is silent as to creating any such operator duty and "a
statute violates due process if it is so vague that a person of
common intelligence cannot discern what conduct is prohibited,
required, or tolerated", citing Mini Spas, Inc. v. South Salt
Lake City Corp., 810 F.2d 939, 9439 (10th Cir. 1987), citing
Connally v. General Contr. Co., 269 U.S. 385, 391 (1926).
Accord, Phelps Dodge corp. v. FMSHRC, 681 F.2d 1189 (9th Cir.
1982).
Old Ben asserts that its search of the legislative history
of the Mine Act, the 1969 Coal Act, and the law in which MSHA's
right to inspect mines originated in 1941, establish that a
federal mine inspector's right of access has been an entitlement
"to admission" to a mine to inspect it, and the mine operator
has, since the inception of that right in 1941, been subject to
punishment only if he "refuses to admit" the inspector, not if he
refuses to transport him. Citing the legislative committee
reports, Old Ben concludes that MSHA must be limited to a right
of entry, and that there is no right to operator-furnished
transportation.
Old Ben further asserts that its review of the case law
reveals no decisional authority to support the Secretary's claim
that section 103(a) of the Act confers authority for inspectors
to require that they be ferried about by mine operators ("Nor was
there found any such authority for OSHA inspectors as they roam
the rest of America's workplaces"). Old Ben cites United States
Steel Corp., 6 FMSHRC 1423 (June 1984), in which the mine
operator was cited under section 103(a) for denying an inspector
access to the scene of an accident. In that case, the inspector,
who was at the mine at the time of the accident, sought to
accompany mine personnel on their way to examine the scene in a
company vehicle but was not permitted to do so. The operator's
personnel testified that they refused to allow the inspector to
"accompany [them] to the accident because the inspector had no
right to investigate an accident until [the operator's] personnel
had first investigated . . . to determine whether a reportable
"accident" within the meaning of [Part 50] had occurred."
4 FMSHRC at 620.
As a result of U.S. Steel's action, Old Ben points out that
the inspector was unable to visit the accident scene, and that
the judge "held that U.S. Steel violated section 103(a) of the
Mine Act when [it] prevented [the MSHA inspector] from going to
the scene of the [accident]." 6 FMSHRC at 1429. The Commission
affirmed, noting not that the operator had denied the inspector
transportation and that therefore 103(a) was per se violated,
but that under the circumstances the operator "violated
section 103(a) of the Act by preventing [the inspector] from
inspecting the scene of the [accident]." Id. at 1431. Old Ben
maintains that the denial of transportation was not itself deemed
a violation of 103(a), but merely one fact bearing on whether
the operator had prevented the inspector from inspecting the
accident scene, which it clearly had under the circumstances, and
which was a violation of 103(a).
Old Ben argues that the facts in the instant case are
different from those in U.S. Steel, and unlike that situation,
there was no intent whatsoever (and no claim by MSHA of any
intent) to prevent the inspector from inspecting anything, and no
claim that the inspector did not have the right to inspect any
incident or any location in the mine. Citing the text of the
citation, which was drafted by MSHA attorneys in Arlington, and
which alleges that the inspector was precluded from inspecting
"the mantrip and associated areas of the mine", Old Ben concludes
that this "is a pure red herring" in that it was neither the
inspector's intent to inspect the mantrip or associated areas,
nor did he request to do so (Citing the Inspector's deposition,
Tr. 33, 41).
Old Ben states that there is nothing in the record that
indicates that inspector Stamm was ever, or would be ever, denied
the opportunity to inspect the mantrip or other vehicles if that
were his expressed intent, and it points out that the section
104(b) order was terminated when Mr. Stamm was given a ride in a
diesel truck, not the mantrip. Moreover, when asked by his
supervisor to recount the facts concerning the denial of
transportation to the inspector from December 13, 1990, and
thereafter, Mr. Stamm's only mention of any effect on his
inspection was to complain that not having transportation
required him to be "repeatedly walking the same areas to reach
(his) destination" (Stamm deposition, exhibit 2), and no mention
was made of the mantrip.
Old Ben asserts that when denied transportation on
December 13, 1990, and thereafter, Mr. Stamm continued with his
inspections on foot, free to examine any portion of the mine,
accompanied by the company safety representative and the miners'
representative as usual. Indeed, he continued his daily
inspections without needing to be driven around the mine, without
any claim by the inspector or his supervisor that Old Ben was
violating section 103(a) of the Act, at least not until the
District Manager called Arlington.
Old Ben concedes that had its refusal to chauffeur Mr. Stamm
around the mine actually precluded him from inspecting, then
section 103(a) would arguably have been violated. It also agrees
that where a denial of transportation is effectively a denial of
the inspector's right of entry, then section 103(a) would
arguably be violated. However, Old Ben maintains that merely
because Mr. Stamm would have to walk and therefore might not be
able to finish the inspection as quickly as he would have if Old
Ben had conveyed him around the mine cannot be held to be a
violation of MSHA's right under section 103(a).
Old Ben emphasizes the fact that although MSHA's published
policy manual interprets section 103(a) not only to prohibit
direct denials of the right of entry, but also "indirect
denials", the policy makes no claim that there is an absolute
right to transportation or that a refusal to provide
transportation is itself an indirect denial in violation of
section 103(a). Instead, the policy specifically identifies as a
possible "indirect denial" an operator's "refusal to furnish
available transportation on mine property when it is difficult or
impossible to inspect on foot". Old Ben asserts that this was
clearly not the case since Mr. Stamm continued his inspection on
foot after the citation and order were issued.
Old Ben asserts that the "walkaround" right of a miners'
representative to accompany the MSHA inspector on his rounds is
aptly named to reflect the longstanding, traditional approach to
mine inspections. Old Ben recognizes that MSHA inspectors may
prefer to "be chauffeured around", and that being driven around
the mine may save MSHA time and thus inspection resources. It
also recognizes the fact that denying transportation to an MSHA
inspector may not be a very wise management practice and will
likely not be widely replicated in the future.
In conclusion, Old Ben maintains that although MSHA has a
right of entry pursuant to the Act, it does not have a right of
transportation under section 103(a). Old Ben believes that at
most, only in a limited range of circumstances where the denial
of transportation effectively precludes MSHA's ability to
exercise its right of entry, could there be a section 103(a)
violation in declining to chauffeur an inspector as he conducts
his warrantless search of the mine. Old Ben further believes
that this was not the case in the instant proceedings and that
the citation and order should be vacated.
MSHA's Arguments
MSHA asserts that the obvious and primary purpose for right
of entry authority under section 103(a) of the Mine Act is to
provide an unannounced opportunity for an inspector to enter upon
or through a mine in order to adequately inspect it for health
and safety hazards and/or violations. MSHA takes the position
that if an inspector is merely permitted to walk into a large
complex modern mine, such as Old Ben's Mine No. 26, while at the
same time being denied readily available transportation to the
working areas, the inspector is, in effect, denied entry to the
mine area most crucial to a proper inspection. MSHA believes
that if Inspector Stamm is not permitted to observe the actual
mining cycle, related ventilation, roof control, and general
safety practices when and where there is peak mining activity,
then he is, in effect, denied entry to these areas at the most
crucial time, and is unable to adequately inspect these important
areas. MSHA concludes that this practice has the same effect as
not permitting the inspector to enter upon or through the mine at
all.
MSHA maintains that in order to achieve the purpose of a
mine inspection (the protection of miner safety and health), the
authority of an inspector to enter "through" a mine must apply to
those mine areas where and when mining extraction activity is
occurring. By not permitting the inspector to use available
mobile transportation to inspect the active mining extraction
cycle areas of the mine when such activity is at its peak, is
tantamount to denying him entry "through" the mine in a manner in
which health and safety hazards, conditions, and violations may
be readily and timely observed.
MSHA asserts that mobile transportation is readily available
at the No. 26 Mine, and that a specific vehicle is routinely and
customarily made available to take inspectors wherever they
direct. MSHA points out that prior to December 13, 1990,
Inspector Stamm was permitted to be transported to any mine area
he requested. Further, during the time period he was refused
transportation while conducting a quarterly inspection of the
mine, transportation was made available to other mine inspectors
and these inspectors were transported from place to place as they
requested in a company vehicle. Although Old Ben concedes its
obligation to provide elevator transportation to the bottom of
the shaft, MSHA maintains that it ignores the plain meaning of
the word "through" when it denies readily available
transportation from the elevator to the working areas.
MSHA asserts that contrary to Old Ben's narrow
interpretation, timeliness is an important aspect for adequate
inspection under section 103(a) of the Mine Act, since it also
bars advance notice of inspections for violations and imminent
danger conditions or practices. MSHA concludes that by requiring
Inspector Stamm to walk in a large, complex mine where a
substantial distance exists to the actual mining extraction
areas, Old Ben has created an advance notice problem because by
the time the inspector arrives at the mining cycle face areas,
mining personnel could easily have been informed of the ensuing
inspection. Regardless, denial of available mobile
transportation hinders, delays and impedes the inspector's
opportunity to inspect crucial areas of the mine, and in effect,
denies entry into these areas.
Citing the Commission's decision in United States Steel
Corporation, 6 FMSHRC 1423 (June 1984), MSHA asserts that the
Commission affirmed MSHA's position that denial of transportation
to an inspector, under appropriate circumstances, is a violation
of section 103(a) of the Mine Act. MSHA points out that in the
United States Steel case, an inspector was not permitted access
to an accident scene when a company official refused to permit
the inspector to accompany him to the scene in a company vehicle
even though the company had customarily provided MSHA personnel
with a company vehicle driven by a company representative. MSHA
further points out that the Commission clearly affirmed that an
inspector, when performing regular inspections required under the
Act, had the authority to inspect the mine in its entirety and
that section 103(a) does not limit the areas he may inspect or
the sequence he may employ to complete his inspection.
MSHA asserts that by denying Inspector Stamm vehicle
transportation routinely provided for other inspectors, Old Ben
singled him out and denied him access "through" the mine. MSHA
maintains that this denial of access must be viewed in the
context of the availability of transportation and Old Ben's
practice of providing such transportation to other inspectors and
on other occasions. MSHA concludes that a denial of entry
occurred when Inspector Stamm was denied transportation
customarily available, thereby preventing him from inspecting
important mining activities in the mine at the time sequence of
his choosing and preventing him from fulfilling the inspection
requirements under section 103(a) of the Mine Act.
Findings and Conclusions
Section 103(a) of the Act, 30 U.S.C. 813(a), provides in
relevant part as follows:
. . . . For the purpose of making any inspection or
investigation under this Act, the Secretary . . . or
any authorized representative of the Secretary . . .
shall have a right of entry to, upon, or through any
coal or other mine.
The judicial enforcement remedies available to the Secretary
pursuant to section 108(a)(1) of the Act, 30 U.S.C. 818(a)(1),
provide in relevant part as follows:
The Secretary may institute a civil action for relief,
including a permanent or temporary injunction,
restraining order, or any other appropriate order in
the district court of the United States . . . whenever
such operator or his agent - -
* * * * * * *
(B) interferes with, hinders, or delays the
Secretary or his authorized representative .
. . . in carrying out the provisions of this
Act,
(C) refuses to permit the inspection of the
coal or other mine, or the investigation of
an accident or occupational disease occurring
in, or connected with, such mine,
* * * * * * *
(F) refuses to permit access to, and copying
of, such records as the Secretary . . .
determines necessary in carrying out the
provisions of this Act.
MSHA's Program Policy Manual, Volume I, Section 103, July 1,
1988, which discusses "Denials of Entry" policy, provides in
relevant part as follows:
* * * * * * *
Denials of entry can be either: (a) direct denials
involving confrontation; or (b) indirect denials
involving interference, delay and/or harassment.
Upon being denied right of entry, the inspector should
first attempt to determine the reason for the denial.
Was it direct or indirect? Specific actions must be
taken for the different types of denials:
* * * * * * *
2. Indirect: Indirect denials are those in
which an operator or his agent does not
directly refuse right of entry, but takes
roundabout action to prevent inspection of
the mine by interference, delays, or
harassment. There must be a clear indication
of intent and proof of indirectly denying
entry. For example, access to the mine is
blocked by a locked gate or other means of
blockage. However, a locked gate or other
means of blockage, in and of itself, does not
necessarily constitute a denial of entry.
Mine management may have only closed the mine
for the day and blocked the mine access road
to prevent vandalism. However, when a locked
gate is accompanied by continued production
and deliberate avoidance of communication
with the inspector, the mine operator is
denying MSHA right of entry to the mine
property. Other examples are listed below.
The list is not meant to be all-inclusive,
and reference is made only to some of the
situations which may constitute an indirect
denial.
a. Refusal to furnish available
transportation on mine property
when it is difficult or impossible
to inspect on foot; (emphasis
added).
* * * * * * *
In this case the citation and order charge Old Ben with a
violation of section 103(a) of the Act on January 9, 1991, for
refusing the inspector transportation on the mantrip, or other
modes of transportation, thereby allegedly impeding and
precluding his ability to travel and inspect the mantrip and
associated mine areas. The parties have stipulated that the
inspector was not denied access to the mantrip for the purposes
of inspecting it and that this is no longer an issue.
Accordingly, that portion of the citation and order which allege
that the denial of transportation precluded or impeded the
inspector's efforts to inspect the mantrip IS VACATED.
The parties have stipulated that elevator transportation
between the surface and the underground workings at the bottom of
the shaft was provided to Inspector Stamm out of recognition of
the fact that such transportation was necessary for his access
into and out of the mine. They also stipulated that the usual
inspection procedure for an MSHA inspector and his party (union
walkaround and company safety representative) other than Mr.
Stamm calls for an Old Ben representative to drive the party to
any location specified by the inspector and to park the vehicle
while the inspector examines the conditions at that location. On
occasion, the group may then drive the vehicle to other locations
specified by the inspector, and at the end of the inspection, the
inspection party drives the vehicle back to the shaft.
Old Ben takes the position that since the Act does not in
the first place require it to transport MSHA inspectors around
its mine, its motive for not offering transportation to Mr. Stamm
is not relevant, and that its decision to voluntarily offer
transportation to all other MSHA inspectors except Mr. Stamm
cannot be viewed as a violation. In short, Old Ben believes that
it may discriminate against any inspector for whatever reason,
and in this case it seems obvious that Old Ben is not too
enchanted with the manner in which Mr. Stamm conducts his
inspections. Old Ben has complained to Mr. Stamm's superiors
that he was improperly conducting himself by issuing an excessive
number of citations and orders, that he was taking directions
from the UMWA, that his inspections of multiple areas of the mine
each inspection day was disrupting its operations, and that the
only two mines in MSHA District 8 which were put on MSHA's
"Special Emphasis Program" are the two inspected by Mr. Stamm.
Old Ben has characterized Mr. Stamm's enforcement actions as
"improper and over-zealous", and it believes that many of the
citations and orders which he issued prior to December 13, 1990,
the day the denial of transportation initially began, were
legally defective. MSHA acknowledges that Old Ben has complained
to Mr. Stamm's superiors, and the parties have stipulated that
some 79 of the 285 citations and orders issued by Mr. Stamm
during the last half of 1990 were either vacated or modified by
MSHA during the Part 100 conference process. Thus, while it
would appear that Old Ben has availed itself of an opportunity to
redress some of its complaints about Mr. Stamm, it obviously
reacted rather strongly and directly when on December 13, 1990,
it summarily discontinued its customary practice of providing
transportation to Mr. Stamm and his inspection party, while
continuing to provide it to other inspectors.
I have reviewed the Commission's decision in the U.S. Steel,
case, supra, and I agree with Old Ben's position that the
principal issue in that case was whether or not the cited mine
operator prevented the inspector from going to the scene of an
accident, and not whether or not section 103(a) of the Act
directly required the operator to furnish transportation to the
inspector to go to the accident scene.
In Climax Molybdenum Company, 2 FMSHRC 542 (February 1980),
I affirmed a citation issued to a mine operator for a violation
of section 103(a) of the Act because of the operator's refusal to
allow an inspector to use a camera in the course of his
inspection. MSHA argued that the use of a camera to preserve
conditions observed by an inspector in the course of his
inspection was a natural extension of his right of entry, and
that an operator's refusal to allow an inspector to bring or use
a camera in the mine hindered and impaired MSHA's ability to
conduct the inspections authorized by section 103(a).
I concluded that the use of a camera as an inspection tool
was an extension of the Secretary's right of entry and inspection
authorized by section 103(a). 2 FMSHRC 571. However, I rejected
MSHA's argument that the refusal to permit the use of cameras
constituted harassment and intimidation of the inspector per se,
and I ruled that absent any credible evidence of harassment, or
the impeding of the inspection, the operator's refusal to allow
the use of cameras did not warrant a substantial civil penalty
assessment. 2 FMSHRC 572-573.
I believe that it is clear from the legislative history of
section 103(a) of the Act, and the case law, that Congress
intended to confer on the Secretary broad inspection authority,
including the right of mine entry by inspectors without advance
notice and without the necessity of obtaining a warrant.
Although I find no inherent right to operator furnished
transportation pursuant to section 103(a) of the Act, given the
fact that the mining industry is a pervasively regulated industry
that requires a broad and liberal construction and application of
the inspection and enforcement provisions of the Act, I conclude
and find that an inspector has a qualified right, as a natural
and reasonable extension of his right of entry through a mine
pursuant to section 103(a), to use readily available operator
furnished transportation to facilitate his mine inspection. I
further conclude and find that in a given set of circumstances,
and on a case-by-case basis, denying an inspector routinely and
customarily available transportation which does not unreasonably
burden or disrupt mining operations, and which unduly delays or
obstructs an inspection is contrary to the spirit and intent of
section 103(a) of the Act and may constitute a violation of that
section.
I recognize the fact that section 108(a) of the Act
prohibits a mine operator from interfering, hindering, or
delaying the Secretary or her authorized representatives in
carrying out the provisions of the Act, and provides for U.S.
District Court injunctive remedial relief in such instances.
However, given the great numbers of daily mine inspections, I
find it unrealistic and unreasonable to expect the Secretary to
inundate the courts with injunction actions each time mine
management decides to withhold a transportation "privilege or
favor" from a mine inspector because of his perceived
"overzealous" inspection and enforcement actions.
Contrary to Old Ben's position in these proceedings, I
conclude and find that safety director Stritzel's motives in
denying Mr. Stamm available transportation, while at the same
time making it routinely and customarily available to other MSHA
inspectors, is relevant. Mr. Stritzel, who served as an MSHA
inspector for 11 years prior to 1982, believes that Old Ben is
under no legal requirement to furnish "voluntary and courtesy"
transportation all around its mines to MSHA inspectors and that
such transportation may be denied for any reason, particularly in
the case of "an obnoxious inspector . . .an inspector who abused
the privilege, or to an inspector who for any reason was deemed
no longer deserving of such favors". On the facts of this case,
and although not stated directly, it seems rather obvious to me
that Mr. Stritzel's view of Mr. Stamm is that he is an
"obnoxious" inspector who has "abused the privilege" of company
furnished transportation and is therefore no longer deserving of
such a company bestowed favor. It appears to me that Mr. Stamm
has fallen out of favor with Old Ben's safety director because
his inspections have resulted in an increased number of citations
and orders, and have apparently resulted in at least two of Old
Ben's mines being subjected to MSHA's Special Emphasis program.
I am somewhat surprised by Old Ben's admissions and
suggestions that its safety director may curry favor with MSHA
inspectors by making available coffee and transportation as
"favors" which may be withheld or granted by management on the
basis of whether an inspector is "no longer deserving" of such
"privileges of favors". In my view, such a policy could subject
inspectors to undue pressures, and influences, and possible
harassment or intimidation, which may adversely impact on the
effectiveness or integrity of their inspections. Further, in
some instances, a practice of bestowing "favors" on inspectors
may be illegal or contrary to government regulations.
On the facts of this case, I find that the denial of
transportation to Mr. Stamm, who had fallen out of favor with Old
Ben's safety director, while at the same time making such
transportation routinely and customarily available to other MSHA
inspectors, was a petty and unprofessional way of dealing with an
inspector who had become persona non grata because of his
purported "overzealous" enforcement of the Act and MSHA's
regulatory safety and health standards. In these circumstances,
and if it can be established by a preponderance of the credible
evidence that the denial of transportation to Mr. Stamm
obstructed or unduly delayed his inspection on January 9, 1991,
as charged by MSHA in the contested citation and order, I would
find a violation of section 103(a) of the Act.
As correctly argued by Old Ben in its briefs, MSHA's policy
manual interpretation of section 103(a) of the Act makes no claim
that there is an absolute right to transportation or that a
refusal to provide transportation is itself an indirect denial in
violation of section 103(a). MSHA's policy statement specifi-
cally states that refusal to furnish available transportation
when it is difficult or impossible to inspect on foot may
constitute an indirect denial of entry to the mine for inspection
purposes. Thus, in order to establish a violation of section
103(a) pursuant to MSHA's policy interpretation, it must be shown
that transportation was available, but denied to the inspector,
and that it was difficult or impossible for the inspector to
conduct his inspection on foot.
The record in this case establishes that the narrative
allegations in the citation and order that the denial of
transportation to Mr. Stamm "precluded his ability to properly
travel and inspect associated areas of the mine and impeded his
inspection" were drafted by the Arlington Solicitor's office and
faxed to the MSHA District office so that Mr. Stamm could
incorporate that language in the citation and order which he was
directed to issue on January 9, 1991, after he was refused
transportation. Mr. Stamm conceded that these were not his
words, but he agreed with the statements. However, I find
nothing in the citation or order, as written, which alleges or
suggests that it was difficult or impossible for Mr. Stamm to
conduct or complete his inspection on January 9, 1991.
The record reflects that Mr. Stamm was initially denied
transportation on December 13, 1990, and that with the exception
of December 19, 1990, when he rode a mantrip into the mine and
walked, all of Mr. Stamm's inspections from December 19, 1990, to
January 9, 1991, were conducted on foot. Mr. Stamm testified
that the only difference in his inspection routine after December
13, 1990, was the fact that he had to walk to the locations where
he was to conduct his inspections, whereas prior to December 13,
he was transported to these locations. Aside from Mr. Stamm's
conclusion that requiring him to walk "impeded" his inspection
because he could not get to the working section as quickly as he
would like, I find no evidence that it was difficult or
impossible for him to conduct his inspections on foot during this
time frame. Indeed, when specifically asked why it was necessary
for him to timely reach the section on January 9, 1991, and
whether or not the transportation which was refused would have
assisted him in timely reaching the section, Mr. Stamm responded
"I can't answer that. I don't know if that date that would have
altered my inspection . . .", and he explained that he would have
gone to another area of the mine to continue his inspection
within his eight hour day. Although Mr. Stamm alluded to the
"possibility" of not being able to complete a AAA inspection
within the allowed time, he confirmed that once he entered the
underground workings from the bottom of the shaft, he is
"constantly inspecting and looking" wherever he travels, and that
it does not matter whether this is done on any one particular day
(Tr. 56-57).
Supervisory Inspector Kattenbraker testified that Mr. Stamm
was not denied entry to the mine, nor was he barred from going
anywhere in the mine to conduct his inspections. He confirmed
that Mr. Stamm conducted inspections on several days during the
period December 13, 1990, to January 9, 1991. Sub-district
manager Sakovich testified that when Mr. Stamm was denied
transportation from December 13, 1990, to December 19, 1990, he
instructed Mr. Stamm "to go about his business and do his job".
Mr. Sakovich confirmed that during this time period, Mr. Stamm
had inspection duties which did not require him to have
transportation.
District manager Childers characterized the denial of
transportation to Mr. Stamm as a "local transportation problem"
and he did not believe that Mr. Stamm was denied entry to the
mine. Mr. Childers testified that when he first learned of the
problem on January 3, 1991, he instructed Mr. Sakovich to tell
Mr. Stamm "not force himself on it and to proceed with his
inspections". Mr. Childers confirmed that providing trans-
portation to inspectors was a "courtesy" and an industry practice
in Illinois and that there were no prior problems in this regard
in his district. He also indicated that if transportation is
unavailable because it is operating at another location, is down
for maintenance, or is filled with company personnel, an
inspector would be expected to walk to his place of inspection
and should not "sit or wait".
Mr. Sakovich and Mr. Childers were of the opinion that due
to the size of the mine, the denial of transportation to
Mr. Stamm "impeded" his inspections. Mr. Sakovich believed that
the denial of transportation would "double or triple" Mr. Stamm's
inspection time and he doubted that Mr. Stamm could inspect the
mine once a quarter by walking. Mr. Childers was of the opinion
that Mr. Stamm's inspections would take "several weeks longer"
due to the denial of transportation. Mr. Childers believed that
the language "impeding the inspection" is found in MSHA's section
103(a) policy statements, and both he and Mr. Sakovich relied on
the policy in support of their conclusions that Old Ben violated
section 103(a) of the Act by denying transportation to Mr. Stamm.
I have carefully reviewed MSHA's section 103(a) policy
statements, and I find no "impeding the inspection" language.
Although the language found at page 10, of the July 1, 1988,
policy manual explains that "interference, delays, or harassment"
to prevent an inspection may be considered an indirect denial of
entry, the policy goes on to state that there must be a clear
indication of intent and proof of indirectly denying entry. The
only policy reference to a refusal to provide transportation is
the qualified policy statement found in paragraph 1(a) at page
10, which indicates that refusal to furnish available
transportation when it is difficult or impossible to inspect on
foot may constitute an indirect denial of entry.
I find no credible evidence to support any conclusion that
it was difficult or impossible for Mr. Stamm to conduct his
inspection on January 9, 1991, after he was denied
transportation. I also find no evidentiary support for any
conclusion that it was difficult or impossible for Mr. Stamm to
conduct his inspections during the period December 13, 1990, to
January 9, 1991, or thereafter. Indeed, the parties stipulated
that most of the mine can only be inspected on foot, and that all
of the active workings can be reached within a 30 to 40 minute
walk from the shaft bottom. The parties further stipulated that
Mr. Stamm continued to conduct his regular 4th quarterly
inspection of the mine on foot from December 13, 1990, and
continuing until January 15, 1991, (when the order was abated),
and that it took him only three days longer to complete his 4th
quarterly inspection when transportation had been denied for over
a month than his 3rd quarterly inspection when transportation had
been provided.
Although the parties stipulated that the three day delay was
largely attributable to the extra time it took Mr. Stamm to walk
into and out of the mine in the 4th quarter, I take note of the
fact that Mr. Stamm issued more citations and orders during the
4th quarter than during the 3rd quarter, and substantially more
than during any prior 4th quarter in recent years or in any
quarter back through 1986 (stipulation #15). Under these
circumstances, I would venture a guess that Mr. Stamm spent more
"inspection" time in the fourth quarter on the necessary
"paperwork" incident to issuing citations and orders and
documenting the cited conditions than he did during the 3rd
quarter.
I take further note of the fact that Inspector Stamm began
his fourth quarterly inspection on October 29, 1990, one month
after the start of the fourth calendar quarter and during the
time when he was provided with transportation. I also note that
on January 9, 1991, after issuing the citation and order,
Mr. Stamm continued his inspection by walking, left the
underground area sometime between 1:00 p.m. and 1:30 p.m., and
left the mine at 2:25 p.m. to return to his office. Assuming
that Mr. Stamm's normal work day ended at 5:00 p.m., and absent
any explanation to the contrary, it would appear to me that
Mr. Stamm either completed his inspection that day and left the
mine, or left it early for other reasons. As for Mr. Stamm's
beginning his fourth quarterly inspection well into the last
quarter, I find no evidence that the delay was the result of any
transporation difficulties, and absent any further explanation, I
believe one may reasonably conclude that a fourth quarterly
inspection which begins a month late will end late.
I find no evidentiary support for Mr. Sakovich's belief that
the denial of transportation doubled or tripled Mr. Stamm's
inspection time, or Mr. Childer's belief that the inspection
would take several weeks longer. I further find no evidentiary
support for any conclusion that the denial of transportation to
Mr. Stamm from December 13, 1990, to January 9, 1991, and
thereafter to January 15, 1991, when the order was abated,
violated MSHA's policy or unduly delayed or obstructed Mr.
Stamm's inspections in violation of section 103(a) of the Act.
In short, I conclude and find that MSHA has failed to prove any
violations by a preponderance of the evidence of record, and that
the contested citation and order should be vacated.
Old Ben has conceded the necessity for providing Mr. Stamm
with elevator transportation from the mine surface to the
underground workings, and while it abated the order by agreeing
to transport him to the location where he wished to commence his
daily inspection and back to the shaft at the end of that
inspection, it did not agree to transport him from place to place
in the mine during the interval between those times, and did not
provide him with transportation within the underground mine
because it believed that he could perform his inspection on foot.
It is not clear whether Old Ben's agreement to provide Mr. Stamm
with transportation from the elevator shaft bottom to the initial
point of his inspection and then back to the shaft when he has
finished his inspection was limited to the abatement of the
order, or whether Old Ben will in the future continue to
accommodate the inspector in this manner.
I find it rather unfortunate that Old Ben's safety director,
a former MSHA inspector himself, and the incumbent MSHA mine
inspector have become adversaries in what should ordinarily be a
mutually cooperative effort to insure safe and healthy working
conditions in the mine. I take note of Old Ben's candid
recognition of the fact that "antagonizing MSHA inspectors, with
their broad discretion and substantial enforcement powers,
including the power to issue ex parte closure orders, is likely
ill-advised" (fn. 8, Old Ben's Motion for Summary Decision). It
is hoped that both parties to this dispute can reach some
accommodation and mutual understanding so as preclude any further
escalation of the obvious breakdown in the working relationship
between the inspector and Old Ben's safety director.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS:
1. Section 104(a) Citation No. 3537139, January 9,
1991, IS VACATED, and Old Ben's contest IS GRANTED.
2. Section 104(b) Order No. 3537140, January 9, 1991,
IS VACATED, and Old Ben's contest IS GRANTED.
Distribution:
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, DC 20004
(Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor 4015 Wilson Boulevard, Room 400, Arlington, VA 22203
(Certified Mail)
/ml
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