Rostosky Coal Company

Plain-English summary

Rostosky Coal Company leased and operated the Stiteler Strip, a surface coal mine. The operator denied MSHA inspectors entry to conduct an inspection, tore up a citation, and continued refusing access after officials explained the legal requirement. Judge Jacqueline R. Bulluck found a violation of the Mine Act's inspection-access requirement and found high negligence. She affirmed the citation and order, assessed a $2,000 civil penalty, and directed that the case be dismissed after payment.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(a), 30 U.S.C. § 814(a), 30 U.S.C. § 814(b), and 30 U.S.C. § 820(j)
• Outcome: Citation No. 3681379 and Order No. 3681380 were affirmed, with a $2,000 penalty due within 30 days and dismissal after payment.
• Key point: A mine operator must allow authorized MSHA representatives access for inspections, even when it objects to the assigned inspector.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, Suite 1000
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                    September 3, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 99-73
Petitioner : A.C. No. 36-01555-03507
v. :
: Stiteler Strip
ROSTOSKY COAL COMPANY, :
Respondent :
:

                        DECISION

Appearances: Donald K. Neely, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Respondent;
Mr. Joseph Rostosky, Rostosky Coal Company,
Monongahela, Pennsylvania, pro se.

Before: Judge Bulluck

 This proceeding is before  me upon a Petition for

Assessment of Penalty filed by the Secretary of Labor,
through the Mine Safety and Health Administration ("MSHA"),
against Rostosky Coal Company ("Rostosky Coal"), pursuant
to section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815.

 A hearing was held in Washington, Pennsylvania in which

Joseph Rostosky represented himself, assisted by his son,
Peter Rostosky, who is co-owner. The Secretary's post-hearing
brief is of record. For the reasons set forth below, the
citation and order at issue shall be AFFIRMED.

I. Stipulations

 The parties stipulated to the following facts:

 1.  Stiteler  Strip is leased and operated by the 
 Respondent in this case, Rostosky Coal Company.

 2.  Stiteler Strip  is  subject  to  the jurisdiction of 
 the Federal Mine Safety and Health Act of 1977.

 3.  The presiding administrative law judge  has 
 jurisdiction over the proceedings, pursuant to section 105 
 of the Act.

 4.  The citations and terminations were properly served 
 by a duly  authorized  representative of the Secretary of 
 Labor upon an agent of the Respondent at the date and place 
 stated therein and may be admitted into evidence for the 
 purpose of establishing their issuance.

 5.   The parties stipulate to the authenticity of their
 exhibits, but not t  the relevance or the truth of the
 matters asserted therein.

 6.   The operator had one (1) assessed violation for the
 twenty-four month period prior to issuance of the subject
 citation.

 7.  The imposition of the proposed civil penalty will 
 have no effect on the Respondent's ability to remain in 
 business.

 8.  Rostosky Coal Company produces approximately 17,628 
 tons of coal annually in all of its operations.

 9.  Stiteler Strip produces 17,628 tons of coal annually.


 II.  Factual Background

 Rostosky Coal operates and leases the Stiteler Strip, a

surface coal mine, in which father and son co-owners, Joseph
and Peter Rostosky, are the primary working employees, with
some aspects of the mining process, such as blasting and
"gopher" duties, subcontracted to other individuals (Tr. 85,
183, 190, 195-98, 203-04, 211).

 The record establishes that MSHA Inspector Randy Myers,

assigned to the Kittanning Field Office, was "lent" to the
Waynesburg Field Office to inspect the Stiteler Strip, in
order for Waynesburg to complete mandatory inspections of
the mines under its jurisdiction by March 31, 1998 (Tr. 23-
25, 46, 49, 62-63).

 On March  17,  1998, Inspector  Myers  arrived  at  the

Stiteler Strip at 6:00 a.m. to conduct a Triple A inspection
of the mine, including noise and dust sampling (Tr. 23-31).
When the Rostoskys arrived some forty minutes later, Peter
Rostosky remained in the truck while his father opened up
the mine (Tr. 26-28). When Inspector Myers approached
Joseph Rostosky at the mine entrance, identifying himself
and his mission, Rostosky became visibly agitated and
argumentative and, joined by his son who, in like fashion
but lesser in degree, supported his father's position,
denied the inspector entry to the mine (Tr. 28-31). It is
undisputed that the Rostoskys did not ask to see Myers'
credentials and believed him to be an MSHA inspector,
despite the fact that they had never met him before (Tr.
141-42). Consequently, without issuing a citation or order,
Myers left the mine at approximately 7:00 a.m. (Tr. 32).

 Inspector Myers proceeded to the Washington Field Office,

reported the incident to Supervisory Inspector Robert
Newhouse, and was instructed by Newhouse to return to
Kittanning to write his field notes and a memorandum of what
had transpired that morning (Tr. 33; Exs. G-1, G-2).

 On instructions from MSHA District Manager Joseph Garcia,

Inspector Newhouse, accompanied by Inspector William Wilson,
arrived at the Stiteler Strip around 9:15 the same morning,
for the purpose of investigating the earlier incident and
proceeding with an inspection by Wilson, operator permitting
(Tr. 121-23). Upon entering the pit, the inspectors were
met by Joseph Rostosky, very angry to the point of screaming
and poking Inspector Newhouse in his chest, who asserted,
among other things, that MSHA should have assigned an
inspector, known to the Rostoskys, from the neighboring
Washington Field Office (Tr. 76-78, 86-87, 127-28, 187-90).
As a consequence of being denied access to inspect the mine,
Inspector Wilson issued 104 (a) Citation No. 3681379 to
Joseph Rostosky, alleging a non-significant and substantial
violation of section 103(a) of the Act, describing the
conduct as follows:

      On  Tuesday,  March  17,  1998,  Joseph  Rostosky,
 operator,  refused  to allow Randy Myers, an authorized
 representative  of  the   Secretary,   entry  into  the
 Stiteler  Strip  Mine for the purpose of conducting  an
 inspection of the  mine,  pursuant to Section 103(a) of
 the  Act.   Mr.  Rostosky  stated   that   the  Federal
 Inspector  could  not  enter  the  mine to conduct  his
 inspection

(Tr. 79-81; Ex. G-4). Joseph Rostosky, in turn, tore up the
citation and threw it to the ground (Tr. 82). Peter
Rostosky then called District Manager Garcia from the pit,
and despite Garcia's explanation to him that MSHA was
shorthanded and that the Rostoskys were required by law to
permit inspection, irrespective of their level of comfort
with MSHA's choice of inspector, the Rostoskys remained
steadfast in their refusal to allow the inspectors access
to the mine (Tr. 92-93, 202-03). After retreating from the
property to their government vehicle and allowing the
Rostoskys thirty minutes to cool off and reconsider their
position, Inspectors Newhouse and Wilson returned to the pit
and renewed their request to conduct an inspection (Tr. 93).
Upon the Rostoskys' continued refusal, Inspector Wilson issued
104 (b) Order No. 3681380, for failure to abate the citation,
describing the conduct in the following manner:

      Joseph Rostosky,  operator,  continued  to deny an
 authorized representative of the Secretary the right of
 entry  into  the  Stiteler  Strip  for  the purpose  of
 conducting an inspection of the mine in accordance with
 the  requirements  of  section  103(a)  of the  Act  on
 3/17/98,  after  a  reasonable  time  allowed  for  Mr.
 Rostosky to comply

(Ex. G-5; Tr. 94-99). Thereafter, Inspectors Newhouse and
Wilson left the mine.

 Subsequently,  on  March  24, 1998, pursuant  to  civil

injunction, Inspector Myers, accompanied by another
inspector, inspected the Stiteler Strip Mine and terminated
the order (Ex. G-3; Tr. 37-39).

 III.  Findings of Fact and Conclusions of Law

        A.  Fact of Violation

 The instant citation  and order charge a non-significant

and substantial violation of section 103(a) of the Act, which
provides in pertinent part:

      Authorized representatives of the Secretary  . . .
 shall  make frequent inspections and investigations  in
 coal or other mines each year for the purpose of  . . .
 (4) determining  whether  there  is compliance with the
 mandatory  health  or  safety  standards  or  with  any
 citation, order, or decision issued under this title or
 other requirements of this Act.   In  carrying  out the
 requirements  of this subsection, no advance notice  of
 an inspection shall  be provided to any persons     . .
 . .  In carrying out the  requirements  .  .  . of this
 subsection,  the  Secretary  shall make inspections  of
 each . . . surface coal or other  mine  in its entirety
 at least two times a year.  The Secretary shall develop
 guidelines for additional inspections of mines based on
 criteria  including,  but  not limited to, the  hazards
 found in mines subject to this  Act, and his experience
 under this Act and other health and  safety  laws.  For
 the  purpose  of making any inspection or investigation
 under this Act,  the  Secretary  .  . . with respect to
 fulfilling his responsibilities under  this Act, or any
 authorized representative of the Secretary  . . . shall
 have the right of entry to, upon, or through  any  coal
 or other mine.

 It is well settled that Congress intended section 103(a)

of the Act to give "a broad right-of-entry to the Secretaries
or their authorized representatives to make inspections
and investigations of all mines under" the Act. S. Rep. No.
95-181, 95th Cong., 1st Sess. 27 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 615 (1978). Furthermore, the Secretary's broad
right-of-entry under this standard, including the prohibition
of advance notice to operators prior to inspection, has passed
constitutional muster. Donovan v. Dewey, 452 U.S. 594, 598-608
(1981). Consistent with Dewey, the Commission has held that the
failure of an operator to permit entry for inspection
constitutes a violation of section 103(a). Waukesha Lime and
Stone Co., Inc.., 3 FMSHRC 1702, 1703-04 (July 1981); United
States Steel Corp., 6 FMSHRC 1423, 1430-31 (June 1984). In so
holding, the Commission has rejected the argument that injunctive
relief under section 108(a)(1) is the sole remedy available to
the Secretary. Waukesha, 3 FMSHRC at 1704. Moreover, the
Commission has emphasized that denial of access is at the
operator's legal peril and "is an action not to be taken
lightly." Tracey and Partners, Randy Rothermel, Tracey
Partners, 11 FMSHRC 1457, 1464 (August 1989).

 The Commission has directly spoken to the circumstances

surrounding the instant matter in Calvin Black Enterprises,
7 FMSHRC 1151 (August 1985). In that case, the Commission
found that, upon arrival at the mines, the inspectors
properly identifying themselves, informed management of their
purpose and the inspection requirements of the Act and,
thereafter, were told that they were trespassing and needed
the operator's written permission before inspecting. In
affirming a violation of section 103(a), the Commission
concluded that "MSHA inspectors are not required to force
entry or to subject themselves to possible confrontation
or physical harm in order to inspect." Id. at 1157.

 I credit Inspector Myers' testimony that he properly

identified himself, explained his purpose for coming to the
Stiteler Strip and discussed with the Rostoskys MSHA's
responsibility to conduct two inspections annually. Indeed,
the Rostoskys' rendition of the incident is essentially the
same. I find Inspector Myers' premature departure from
the mine reasonable, given his apprehension that conducting
the inspection could possibly result in an altercation,
given the Rostoskys' display of animus toward MSHA in
general, and their antagonism toward him, in particular.
I also credit the testimony of Inspectors Newhouse and
Wilson that Joseph Rostosky displayed extremely aggressive,
threatening behavior, including screaming, poking his finger
in Newhouse's chest, and tearing up and throwing away the
citation. I also credit the inspectors' assertions that they
made numerous attempts to reason with the Rostoskys and
persuade them to permit an inspection. Moreover, in the
telephone conversation between Peter Rostosky and District
Manager Garcia, the Rostoskys were given an explanation
for the inspection and assignment of Myers by higher
authority, warned that they were in serious violation of
the law, and urged to permit inspection by the Wilson-
Newhouse team.

 The Rostoskys simply chose not to believe that MSHA

was shorthanded. Their cumulative testimony amounted to
discomfort with inspectors that "didn't know their job
operation," and displeasure that they had been denied
advance notice. Furthermore, the Rostoskys expressed their
opinion that MSHA is harassing them by conducting
inspections, since the Act does not apply to a two-man
operation, and since their surface operation, as opposed
to an underground mine, does not come under the definition of
"mine." While I find the Rostoskys to be sincere, although
incorrect, in their beliefs, I also find them totally lacking
in deference to MSHA's authority and, therefore, closed to
all suggestion of conduct that would have brought them into
compliance with the law. Moreover, the Act does not exempt
Rostosky Coal from inspection, or entitle the company to
advance notice or "inspector shopping."

 There was no confusion by the Rostoskys that Myers,

Newhouse and Wison were MSHA inspectors. They were given a
full explanation, repeatedly, as to why inspection was
required, as well as why Myers had been assigned to their
operation. They were provided a copy of section 103(a) of
the Act, explained the consequences of non-compliance, and
referred to the district manager, who explained the mission
of all three inspectors and advised the Rostoskys of their
duty to comply with the law. I credit the testimony of
Newhouse and Wilson that the Rostoskys were put on notice that
they had one-half hour to calm down and reconsider their
position before the failure to abate order was issued,
primarily because this rendition of events is consistent
with the overall evidence of the inspectors' efforts to
resolve any problems that may have existed and accomplish
inspection. Moreover, the Rostoskys' testimony, that they
would have permitted Newhouse and Wilson to inspect had
they been asked, suggests a spirit of cooperation that the
weight of the evidence does not support. In any event, it is
evident that Joseph's Rostosky's level of and hostility and
aggression, together with his son's lesser but, nevertheless,
antagonistic posture, required the course that the inspectors
ultimately took--abandoning the mission and accomplishing
inspection at a later date through civil injunctive relief.
It is also abundantly clear that the Rostoskys are lacking
in understanding of the protective purposes of the Act and the
duties required of them as mine operators, thereunder.
Accordingly, based on the totality of the evidence, I find
that the Rostoskys denied the inspectors access to the
Stiteler Strip Mine and, therefore, violated section 103(a)
of the Act, as alleged.

   B.  Penalty

 While  the  Secretary has proposed a civil  penalty  of

$3,000.00, the judge must independently determine the
appropriate assessment by proper consideration of the six
penalty criteria set forth in section 110(i) of the Act,
30 U.S.C. §820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92
(March 1993), aff'd, 763 F.2d 1147 (7th Cir. 1984).

 Rostosky Coal is a very small operator, with only one

assessed violation for the twenty-four month period prior to
the issuance of the subject citation, not for the standard
at issue in this case (Ex. G-7). As stipulated by the
parties, the proposed penalty will not affect Rostosky
Coal's ability to continue in business.

 The remaining criteria  involve consideration of the

gravity of the violation and the negligence of Rostosky Coal
in causing it. I find the gravity to be very serious. Lack of
regard for the Secretary's authority to inspect the mines
without interference and intimidation, if tolerated, would
undercut the very purpose of the Act, by disabling the
mechanism by which it is enforced. Considering that,
multiple times, the Rostoskys disregarded warnings by
Inspectors Myers, Newhouse, Wilson and Garcia that denial
of access by federal inspectors to conduct inspections is
an egregious violation of the Act, and unreasonably continued
to deny access in a hostile and intimidating manner until the
court's intervention, I find this conduct intentional and
tantamount to an aggravated lack of care that is more than
ordinary negligence. Consequently, I ascribe high negligence
to Rostosky Coal. It is also my finding that the Rostoskys'
hostile, combative behavior is rooted in misconceptions of the
Act, and tha good faith communication between the Rostoskys
and MSHA, intended to foster a professional working relationship,
is necessary. Having duly considered Rostosky Coal's very small
size, good history of prior violations, seriousness of the
violation, high degree of negligence, failure to abate in good
faith and no other mitigating factors, I find that a penalty
of $2,000.00 is appropriate for a company the size of Rostosky
Coal, with the caveat that any future violation of this nature
would suggest an unconscionable disregard for the Act and MSHA's
enforcement authority that may result in significant escalation
in penalty.

                          ORDER

 Accordingly, it is ORDERED that Citation No. 3681379 and

Order No. 3681380 are AFFIRMED, and Rostosky Coal Company is
ORDERED to pay a civil penalty of $2,000.00 within 30 days
of the date of this decision. Upon receipt of payment, this
case is DISMISSED.

                          Jacqueline R. Bulluck
                          Administrative Law Judge

Distribution:

Donald K. Neely, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Bldg., 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

Joseph Rostosky, Owner, Rostosky Coal Company, R.D. #3, Box 112,
Monongahela, PA 15063 (Certified Mail)

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