C&B Mining Company

Plain-English summary

MSHA inspector Dennis Myers was denied entry to C&B Mining Company's No. 2 Vein Slope Mine while attempting a spot inspection related to possible abandoned workings. Judge David F. Barbour found that C&B violated the Mine Act by refusing entry to an authorized MSHA inspector and found the violation very serious and highly negligent. He affirmed Citation No. 3080842, ordered the Secretary to remove the S&S designations from Citation No. 3080841 and Order No. 3080842, and reduced the proposed $1,000 penalty to $500. The judge also found that C&B had a negligible violation history and was a small operator.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(a), 30 U.S.C. § 813(i), and 30 U.S.C. § 814(b)
• Outcome: Citation No. 3080842 was affirmed, the S&S designations were ordered deleted from Citation No. 3080841 and Order No. 3080842, and the penalty was reduced to $500.
• Key point: An operator may not selectively bar an authorized MSHA inspector from entering a mine during a valid inspection.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 92-531
Petitioner : A.C. No. 36-07813-03553
:
v. : No. 2 Vein Slope Mine
:
C&B MINING COMPANY, :
Respondent :

                          DECISION

Appearances: Anita Eve-Wright, Esq., Office of the Solicitor
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Gary Lorenz, Representative of Operator, Shamokin,
Pennsylvania, for the Respondent.

Before: Judge Barbour

                    STATEMENT OF THE CASE

 In this civil penalty proceeding initiated by the Secretary

of Labor ("Secretary"), on behalf of the Mine Safety and Health
Administration ("MSHA"), pursuant to Sections 105(a) and 110(i)
of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or
"Act"), 30 U.S.C. § 815(a), 820(i), the Secretary seeks the
assessment of a civil penalty against C&B Mining Company ("C&B")
for C&B's alleged violation of Section 103(a) of the Act, 30
U.S.C. § 813(a).(Footnote 1)

 The Secretary asserts that on January 28, 1992, MSHA

inspector Dennis Myers was denied entry to C&B's No. 2 Vein Slope
Mine by Glenn Parks, the mine's hoisting engineer. According to
the Secretary, Parks was acting on the orders of Gary Lorenz, an
owner of C&B. The Secretary asserts that because Myers was at
the mine to conduct an inspection pursuant to Section 103(i),
30 U.S.C. § 813(i), of the Act, C&B violated section 103(a) when

1
Section 103(a) authorizes MSHA inspectors to conduct frequent
investigations and inspections of the nation's mines, to determine, among
other things, whether an imminent danger exists and whether there is
compliance with applicable mandatory health and safety standards promulgated
pursuant to the Act. To accomplish these purposes MSHA is authorized "to make
inspections of each mine in its entirety at least four times a year."

it denied him entry.(Footnote 2) The Secretary proposes a civil penalty of
one-thousand dollars ($1,000) be assessed for the alleged violation.

 Lorenz, on behalf of C&B, contests the proposed penalty.

A hearing was conducted in Williamsport, Pennsylvania, at which Anita Eve-
Wright represented the Secretary and Myers and James Schoffstall, Myers'
supervisor, testified for the Secretary. Lorenz represented C&B and testified
for the company. At the close of the hearing the parties orally summarized
their positions.

                THE SECRETARY'S WITNESSES

 Myers stated that he first inspected the No. 2 Vein Slope Mine -- a

small anthracite mine -- in October 1991. Tr.12. The inspection in October
was the beginning of the regular quarterly inspection required by Section
103(a) of the Act. According to Myers, in January 1992, coal was being
extracted at the mine in the vicinity of uncharted, abandoned workings. In
order to make certain that C&B personnel were drilling ahead and into the coal
they intended to mine, so as to give themselves warning if they were
approaching the old workings, MSHA put the mine on a section 103(i) "spot
inspection" basis. Under the spot inspection program Myers was required to
conduct unscheduled weekly inspections at the mine. Tr. 12-13. Myers
explained that the inspections were needed because in the anthracite coal
fields water or contaminated air frequently collects in old workings and if
there is an unintended breakthrough into the old workings a rapid and
potentially deadly inundation of water or release of contaminated air can
occur into the active workings of the mine.

 On January 24, 1992, Myers went to the mine to conduct one of the

required weekly inspections. Myers stated that he arrived at approximately
8:45 a.m. He met Parker and told Parker he was there "for a weekly hazard
inspection." Tr. 13. Myers testified that while he was changing his clothing
to go underground, Parker told Myers that Lorenz had said "to run [Myers] off
if [he] showed up." Id. In the meantime, the miners had come out of the mine
to eat, and Lorenz, who was there, spoke with Myers about why the mine had
been placed on a spot inspection schedule. Lorenz then left the mine, telling
Myers that he had a personal problem at home. Id.

2
Section 103(i) provides that if MSHA finds that there exists in a coal
mine some "especially hazardous condition" that is not gas related, it shall
provide a minimum of one spot inspection of all parts of the mine every five
working days at irregular intervals. Section 103(a) provides the right of
entry that allows MSHA's inspectors to accomplish this purpose.

 Myers testified that after Lorenz left, Parker took a truck of coal to

the stockpile. When he failed to return, another C&B employee went to find
out what was wrong. Myers was told that the truck had developed a mechanical
problem and that the mine would have to close at the end of the day. Myers
and the miners left the mine. Tr. 13-14.

 After leaving, Myers stated that he went to the MSHA field office in

Shamokin, Pennsylvania, and told his supervisor, Schoffstall, what had
happened. Tr. 14. Schoffstall instructed Myers to return to the mine the
next working day (Monday,
January 27, 1992) and to again try to conduct an inspection.
Tr. 14-15.

 Myers returned as directed. Upon arriving at the mine he met Lorenz and

Lorenz's brother, Cal Lorenz. Tr. 15. (Myers stated that Cal Lorenz is the
foreman at the mine.) Lorenz told Myers that Schoffstall had told him "to
think it over about letting [Myers] inspect," that he had done so and that he
had decided Myers could not inspect the mine. Id. Lorenz stated that "[t]he
Federal could inspect but [Myers] couldn't inspect." Id.
Myers understood Lorenz to mean that any MSHA inspector other than himself
could conduct an inspection but that he could not.

 Also, Lorenz indicated to Myers that he did not like Myers' attitude.

Myers asked Lorenz what was wrong with his attitude but Lorenz did not reply.
Id.(Footnote 3) Myers advised the brothers that he would leave so they could
"think it over" but if they continued to refuse to let him inspect the mine he
would have to issue to C&B a citation for "denial of entry." Tr. 16. Myers
then telephoned Schoffstall and recounted the situation. He told Schoffstall
that he would return the following day and would try to conduct the
inspection. Tr. 17.

 Myers came back the next morning. He met Parker at the hoist building

and Parker reiterated that Lorenz had instructed him not to let Myers into the
mine. Tr. 18. In that case, Myers responded, he would issue to C&B a
citation for denying him entry, and that the violation was a significant and
substantial ("S&S") contribution to a mine safety or health hazard. He also
stated he would ask that the violation be specially assessed.(Footnote 4)

3
In addition, Myers stated that Cal Lorenz told him C&B had begun retreat
mining and therefore spot inspections were not longer necessary.
Tr. 16. Myers agreed that if, in fact, C&B was retreat mining, inspections
conducted pursuant to section 103(i) no longer would have been required.
Tr. 18.

4
The Secretary's regulations for the determination of penalty by special
assessment are set forth at 30 C.F.R., Part 100. Section 100.5(d) provides
that when a violation has been issued for a failure to permit an

 Myers issued the citation and returned to the MSHA office where he

discussed the situation with Schoffstall. Schoffstall sent Myers back to the
mine and instructed MSHA inspector Paul Sargent to accompany him. Once back,
Myers asked Parker if he could conduct the inspection? Parker said "no," and
Myers issued to C&B an order of withdrawal pursuant to Section 104(b) of the
Act, 30 U.S.C. § 814(b), for failing to abate the violation of section
103(a).(Footnote 5) Myers and Sargent then met Cal Lorenz who told Myers that
Sargent could inspect but that Myers could not. Tr. 19-20.

 Myers and Sargent returned to the MSHA office. Later in the day Lorenz

came to the office and, according to Myers, confronted him. Myers described
what happened:

      Lorenz came stalking into the office in a very
      aggressive manner, walked over to me, started pointing
      his finger and telling me I would not dictate to him .
      . . anymore. That was his property, that was his
      mine, he would say who would go in and who wouldn't .
      . . He was putting no trespassing signs up and I was
      to be nowhere around.

Tr. 20-21. Schoffstall intervened and called Lorenz into his office. After a
"behind closed doors" conference, Schoffstall asked Myers to join them. Myers
testified that he asked Lorenz what he had done to cause Lorenz to object to
his presence at the mine. Myers maintained that Lorenz would not respond
except to ask Schoffstall why C&B could not be assigned another
inspector?(Footnote 6) When Schoffstall explained why he could not appoint
another inspector for the mine, Lorenz left the office. Tr. 21.

4 (CONT....
inspector to perform an inspection or investigation, MSHA will review the
violation to determine whether a special assessment is appropriate.

5
Section 104(b) states in relevant part that if an inspector finds that
the violation described in a citation has not been abated and that the
operator should not be given further time to abate, the inspector shall
promptly issue an order requiring the withdrawal of miners and prohibiting
their reentry until the inspector determines the violation has been abated.

6
During cross-examination Lorenz asked Myers if he recalled coming to a
garage owned by Lorenz on January 26 and confronting Lorenz about an alleged
failure of C&B to comply with a mandatory standard? Lorenz asked if Myers
remembered pointing a finger at him and telling him in a loud voice that if
C&B did not comply, Myers would shut down the mine? Myers responded he
recalled coming to the garage shortly after Christmas but did not recall
pointing a finger at Lorenz or "carrying on" and he denied that he had told
Lorenz to fix the condition or he would "write it." Tr. 30-31.

 Myers testified that the following day (January 29) Lorenz called

Schoffstall and told him that Myers could inspect. Myers went to the mine
and conducted the inspection. When he came out of the mine he discussed with
Cal Lorenz and C&B's miners "the type of pillaring method they could use, the
ventilation they needed and . . . safe mining practices in pillaring." Tr.

22. As a result of the inspection Myers determined that C&B had begun retreat
    mining and that section 103(i) spot inspections were no longer needed.
    Therefore, the mine was taken off a spot inspection schedule. Id.

    Myers testified that he found the violation to be S&S because without
    inspecting the mine MSHA could not determine if C&B was drilling ahead as it
    advanced toward the old workings. Without drilling there was no way to know
    for certain if C&B's mining process would cut into the old workings and
    whether those old workings contained water or contaminated air. If they did,
    he believed there was a very real danger to C&B's underground miners of at
    least permanently disabling injuries.
    Tr. 22-23, 24.

    Myers also stated he believed the denial of entry to have been caused by
    C&B's reckless disregard of the law. He noted that he had explained to Lorenz
    why he was there to inspect and that Lorenz, who was fully aware of the
    consequences of refusing to let him into the mine, nonetheless persisted in
    his refusal. Tr. 24.

    Schoffstall was the next witness to testify. He confirmed that he had
    first assigned Myers to inspect the mine as part of the regular quarterly
    inspection during October 1991. Tr. 41. In December, when the mine map
    showed the mine to be within 200 feet of old, abandoned workings, MSHA placed
    the mine on a section 103(i) inspection program. Id.

    Schoffstall explained in detail the dangers posed by old, abandoned
    workings -- the dangers of a sudden and unexpected inundating or
    contamination. He recalled the Porter Tunnel disaster of 1979 when 9 miners
    were killed by a sudden mine flood and he indicated that another life had been
    lost similarly in the early 1980's. He termed the need for advance drilling
    "one of [MSHA's] top priorities" in the anthracite region. Tr 42. According
    to Schoffstall, C&B was placed on an section 103(i) inspection schedule "to
    see that the drilling program was carried out." Tr. 43.

    In addition, Schoffstall gave his version of the events of January. He
    confirmed that on January 24, 1992, Myers told him about being barred from
    inspecting the mine and Schoffstall told Myers to go back on the 27th.
    Schoffstall added that on January 24, 1992, Lorenz had called and stated that
    he would permit another inspector to enter the mine but that he would not

allow Myers in. Tr. 44. Schoffstall testified he told Lorenz that he should
reconsider, that a denial of entry was a very serious matter and that no mine
operator had ever won a denial of entry case. Id.

 Schoffstall also stated that this was not his only conversation with

Lorenz on the subject, that on January 27, 1992, and after Myers had returned
to the office, Lorenz again called Schoffstall and requested another inspector
be assigned to the mine. Lorenz told Schoffstall that he had a verbal
disagreement with Myers at Lorenz's garage. Schoffstall responded that he did
not feel a change was warranted and he warned Lorenz again about the serious
nature of a denial of entry. Tr. 45.

 In addition, Schoffstall testified that following the issuance of the

order of withdrawal Lorenz came to the MSHA office and confronted Myers.
Schoffstall described Lorenz as "worked up" and Schoffstall stated that after
Lorenz calmed down he told Lorenz to go home and reconsider, that the quickest
way to solve the problem was to let Myers in. Tr. 46-47. The following
morning, Lorenz called Schoffstall and told him Myers could conduct the
inspection. Tr. 47.

 Schoffstall testified that he went to the mine with Myers and

accompanied him during the inspection. When Lorenz was able to show that the
mine was not being advanced any longer, Schoffstall recommended to the MSHA
district manager that the mine be taken off the section 103(i) spot inspection
schedule, which was done. Tr. 47.

 Schoffstall stated that he had reviewed Myers' findings after Myers

issued the citation and order and that he agreed the violation was S&S. He
echoed Myers' concerns regarding possible inundation of water or contaminated
air should C&B's miners have cut into old workings. Id., Tr. 57. He also
agreed with Myers that the violation was due to C&B's reckless disregard of
the requirements of the Act. Tr. 48-49.

 Under questioning by Lorenz, Schoffstall related that during October

1991 and January 1992, Lorenz frequently called him and asked that a different
inspector be assigned to the mine.
Tr. 50. Schoffstall stated that he recalled Lorenz asserting that he "didn't
like [Myers'] attitude[,]" that he "didn't like the way he inspected[,]" and
that Lorenz had asked for a different inspector "right from the first day."
Id. Schoffstall agreed C&B had no problems with any other of MSHA's
inspectors and he described C&B as a "very cooperative" and safe operator.
Tr. 50-51.

 With regard to his refusal to change inspectors, Schoffstall was of the

opinion that MSHA could not allow an operator to dictate who would or would
not inspect and that while there might be instances where he and the MSHA
district manager would find cause to change an inspector, he did not believe
there had been any reason to change in this instance. Tr. 53-54.

                     C&B'S WITNESSES

 Lorenz explained that he is one of two partners who own C&B, the other

being Cynthia Lorenz, his sister-in-law. Tr. 7-8. Regarding his relationship
with Myers, Lorenz stated that he had a conflict with Myers from the first
time Myers was at the mine, but he denied that C&B was trying to dictate to
MSHA who would be allowed to inspect the mine. Rather, he was trying to
impress upon MSHA the fact that a change of inspectors was truly needed.
Tr. 59-60.

 With respect to the danger to miners presented by the alleged violation,

he indicated that when the citation and order were issued mining was no longer
advancing. The coal had narrowed to a 17 inch seam and the company had only
100 feet to go before it reached the limit of its coal lease. For these
reasons, the company had started retreat mining. Therefore, there was no
hazard. Tr. 60.

                 DISCUSSION AND FINDINGS

                      THE VIOLATION

 The right of entry is clearly set forth in the Mine Act. Section 103(a)

of the Act provides that "for the purpose of making any inspection or
investigation under this [Act] " MSHA inspector's "shall have a right of entry
to, upon or through any coal . . . mine." As the Commission has noted, the
right is broad, and while the Commission has also stated that the right is not
without limits, the record does not suggest, nor does C&B argue, that Myers
was acting outside the bounds of statutory authority on January 28, 1992, when
he sought to inspect the mine. Tracy & Partners, et al., 11 FMSHRC 1457, 1461
(August 1989).

 In Tracy & Partners a majority of the Commission concluded that while

all inspections of mines under section 103 are conducted pursuant to the basic
authority of section 103(a), when MSHA attempts to conduct a spot inspection
pursuant to section 103(i), the spot inspection must be valid in the first
instance

under section 103(i) itself. 11 FMSHRC at 1464.(Footnote 7) Section 103(i)
provides for spot inspections whenever the Secretary "finds . . . that . . .
[a] hazardous condition exists" other than excessive liberation of methane or
other explosive gases or an explosion or ignition of methane or other gases
within the previous five years. Here, Myers and Schoffstall testified without
contradiction of the hazards associated with cutting into old, abandoned
workings. Without entering the mine and inspecting, MSHA did not know and
could not tell whether C&B's miners were being protected from those hazards by
drilling ahead. Nor, as Lorenz agreed, was there any way for MSHA to know,
aside from taking Lorenz's word, that the mine was no longer being advanced
and that retreat mining had started. Tr.61.

 Obviously, MSHA cannot be expected to carry out its enforcement

responsibilities by relying solely on the representations of those subject to
the Act's mandates, if it could there would be no need for inspections. I
therefore find that on January 28, 1992, MSHA properly concluded that "a
hazardous condition exist[ed]" at the mine and that the spot inspection it
sought to conduct was valid in the first instance under section 103(i).

 This being the case, when Myers requested entry on

January 28, 1992, C&B was legally bound to admit him and I conclude that in
refusing him admission C&B violated section 103(a) as charged.

 Nor can C&B's willingness to permit entry to any inspector other than

Myers in any sense lessen its liability. The Act provides that authorized
representatives of the Secretary shall make frequent inspections and leaves
enforcement in the Secretary's hands. It does not provide for inspections by
authorized representatives of the Secretary as approved by the operator, and
clearly the power to designate inspectors must be MSHA's if the Act is to be
effectively enforced.(Footnote 8)

7
I, of course, am bound by the reasoning of the majority, but for another
view on the statutory basis for a valid spot inspection see the dissent of
Commissioners Backley and Lastowka. 11 FMSHRC at 1466-70.

8
This is not to say that situations warranting the removal of an
inspector upon the complaint of an operator may never arise. On the contrary,
Schoffstall indicated such circumstances can exist. Tr. 53-54. Rather, it is
simply to recognize that the final decision is first, last and always MSHA's,
not the operator's.

                        S&S VIOLATION

 Following the hearing I requested a written statement of position from

the parties regarding the following question:

        Can a violation of Section 103(a) of
   the Mine Act be a S&S violation?

In requesting the statement I took note of the fact that the wording of
Section 104(d) of the Act, 30 U.S.C. 814(d), appears to restrict an
inspector's S&S finding to "a violation of any mandatory health or safety
standard" (emphasis added). C&B's representative did not respond. However,
counsel for the Secretary stated in part:

        [P]lease be advised that the Secretary . . . submits
        that a finding that a violation of Section 103(a) . .
        . need not be based on the additional finding that the
        violation was a [S&S] contribution to a mine safety
        hazard. Whereas the gravity associated with the
        violation of a mandatory safety or health standard is
        determined to be [S&S], it must be determined whether
        the gravity involved in a violations of Section 103(a)
        of the Act is serious.

Letter from Anita Eve-Wright (February 1, 1993).

 I conclude from this that the Secretary is dropping his allegations

regarding the S&S nature of the violation at issue, and I will therefore order
the Secretary to vacate the inspector's S&S finding.

                   CIVIL PENALTY CRITERIA

 In assessing a civil penalty for the violation of section 103(a), I must

consider the statutory civil penalty criteria contained in Section 110(i) of
the Act.

                           GRAVITY

 This was a very serious violation. The right of an inspector selected

by MSHA to enter a mine to conduct an inspection or investigation is a
keystone for the Act's structure of enforcement. As I have already observed,
if an operator can selectively bar entry to an inspector, effective
enforcement will be severely compromised.

 It matters not for purposes of assessing the gravity of the violation

that at the time Myers was denied permission to enter there was no need to
drill ahead because mining was retreating. The violation for which C&B is
charged is a denial of entry not a failure to practice a particular mining
technique.

                       NEGLIGENCE

 Myers' and Schoffstall's testimony that Lorenz was advised that a

refusal to admit Myers would be a violation of the Act, was not refuted.
While Lorenz may have believed that in offering to accept any inspector other
then Myers he was within his rights as an operator, he was mistaken and in
ordering Myers' barred from the mine, Lorenz acted at his company's peril. I
conclude that C&B was highly negligent in allowing the violation to exist.

             HISTORY OF PREVIOUS VIOLATIONS

 The company's history of previous violations is negligible and counsel

for the Secretary stated that there is no record of any prior violation of
section 103(a). Tr. 9.

                          SIZE

 Myers stated that C&B employs 4 miners as well as hoist engineer Parks

and foreman Cal Lorenz. Although he did not know the tonnage of anthracite
coal produced annually by the company, he was of the opinion that C&B is a
small operator, and I so find. Tr. 36-37.

             ABILITY TO CONTINUE IN BUSINESS

 The record does not contain any information regarding C&B's financial

condition, and Lorenz did not contend that the amount of any penalty assessed
would adversely affect C&B's ability to continue in business. Therefore, I
find that it will not.

                      CIVIL PENALTY

 While I have found that the violation of section 103(a) was very serious

and that C&B was highly negligent, I nonetheless conclude that this violation
is an aberration in an otherwise enviable record of compliance. I
particularly note Schoffstall's testimony that aside from the problems
involving Myers, he found C&B to be very cooperative and I also note
Schoffstall's affirmative response when Lorenz asked if he considered the mine
to be very safe. Tr. 51-52. This overall positive attitude toward compliance
is also witnessed by C&B's negligible history of previous violations.

 Considering these factor's, and in light of the other civil penalty

criteria, I conclude that the one-thousand dollar ($1,000) civil penalty
proposed by the Secretary is excessive. Instead, I assess a civil penalty of
five-hundred dollars ($500.) It should go without saying that any repeat
violations of section 103(a) that come before me may be subject to
substantially higher penalties.

 In assessing a civil penalty lower than that proposed by the Secretary I

am in no way implying criticism of Myers. From what appears in this record it
is apparent that he is a conscientious inspector who with diligence and great
patience attempted to carry out the duties required of him.

                          ORDER

 Citation No. 3080842 is affirmed. Within thirty (30) days of the date

of this decision C&B IS ORDERED to pay a civil penalty of five-hundred dollars
($500) for the violation of section 103(a) found herein. In addition, the
Secretary IS ORDERED to modify Citation No. 3080841 and Order No. 3080842 by
deleting the S&S designations.

                          David F. Barbour
                          Administrative Law Judge
                          (703) 756-5232

Distribution:

Anita D. Eve-Wright, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market Street, 14480-Gateway Building,
Philadelphia, PA 19104 (Certified Mail)

Mr. Gary L. Lorenz, RD #2, Box 861, Shamokin, PA 17872 (Certified Mail)