Secretary of Labor v. SCP Investments, LLC

Plain-English summary

An MSHA inspector ordered SCP Investments' managing partner off the quarry property during an inspection because he lacked new-miner and site-specific hazard training. Judge Jerold Feldman held that neither the operator's filing status nor those training rules justified denying its statutory right to accompany the inspector, especially because hazard training is unnecessary when the participant remains with an experienced person. Treating the exclusion as an abuse of discretion, the judge vacated the withdrawal order and eleven citations without prejudice and dismissed the penalty cases. The Commission later agreed that the walkaround right was violated but reversed the blanket remedy and remanded.

Decision snapshot

• Governing provisions: 30 U.S.C. § 813(f); 30 C.F.R. §§ 46.5 and 46.11(f)
• Outcome: One section 104(g)(1) order and eleven section 104(a) citations were vacated without prejudice, and the proceedings were dismissed; the Commission later reversed the remedy.
• Subsequent review: The Commission reversed the wholesale vacature and remanded in se-2006-148-m-commission.
• Key point: Lack of new-miner or hazard-awareness training did not justify excluding an operator representative who could accompany an experienced inspector, but the Commission later rejected vacature of all enforcement actions as the remedy.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

June 24, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

SCP INVESTMENTS, LLC,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. SE 2006-148-M

A.C. No. 40-03268-80642

Docket No. SE 2006-163-M

A.C. No. 40-03268-82949

Old County Quarry

DISMISSAL ORDER

These matters concern 12 citations that were issued as a result of an inspection of the Old County Quarry conducted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on
December 14, 2005. The Secretary of Labor (“the Secretary”) proposes a $1,087.00 civil penalty
for these citations. The Secretary is represented by counsel. The respondent, SCP Investments,
LLC (“SCP”), is appearing pro se.

I. Background

The Old County Quarry is a rock crushing facility operated by SCP. Pat Stone is the managing partner of SCP. According to Stone, the mine commenced operations in
September 2005. Section 109(d) of the Federal Mine Safety and Health Act of 1977, as amended
(“the Mine Act”), requires a mine operator to file with the Secretary the name and address of the
mine, as well as the name and address of the person who controls the mine. 30 U.S.C. § 819(d).
Consistent with the statutory provisions of section 109(d), Part 41 of the Secretary’s regulations
requires mine operators to file a Legal Identity Report Form within 30 days of the opening of a new mine. 30 C.F.R. §§ 41.10, 41.11(a).

Section 103(f) of the Mine Act, 30 U.S.C. § 813(f), provides both the miner operator, and a miners’ representative, with the opportunity to accompany a mine inspector during a mine
inspection. At the time of Phillips’ December 14, 2005, inspection, SCP had not filed the
required Legal Identity Report Form registering the facility as an active mine. Consequently,
Phillips ordered Stone to leave the mine property rather than allow Stone to accompany him
during the mine inspection.

Before a miner begins working at a mine, section 46.5(b) of the Secretary’s regulations
requires not less than 4 hours new miner training, including instruction addressing site-specific
hazards. 30 C.F.R. § 46.5(b). However, miners who have not completed new miner training
may work at the mine if an experienced miner can observe the new miner performing his work in
a safe manner. 30 C.F.R. § 46.5(a). Phillips reportedly ordered Stone off of mine property
because Stone had not received Part 46.5 new miner training. Stone, on behalf of SCP, objects to
not being allowed to remain on mine property during the inspection.

As a threshold matter, “[t]he right to accompany an inspector on all 103 inspections has
been consistently recognized by the Commission and the courts.” Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994). The failure to comply with MSHA filing requirements is not a basis for denying section 103(f) “walkaround rights.” Emery Mining Corporation, 10 FMSHRC 276, 277 (Mar. 1988) (failure of a non-employee miners’ representative to file
identifying information required by 30 C.F.R. Part 40 does not permit an operator to refuse the
representative entry to its mine for purposes of exercising section 103(f) walkaround rights). Nor is a general good faith belief that an area to be inspected is too dangerous an adequate
justification for denying walkaround rights. Consol. Coal, 16 FMSHRC at 718-19.

II. Show Cause Orders

To determine whether Stone’s statutory walkaround right was properly denied, on March 31, 2008, a Show Cause Order was issued requiring the Secretary to identify any regulation that warranted Phillips’ denial of Stone’s right to observe the inspection.

30 FMSHRC 341. Specifically, the Secretary was requested to identify any regulation that
supported the denial of Stone’s walkaround rights. In addition, the Secretary was asked to
provide any Interpretive Bulletin or Memorandum addressing her implementation of the
walkaround rights in section 103(f) that justified the denial of Stone’s participation.

The Secretary was also requested to identify, by specific reference to her regulations, the requisite training that must be completed by a miners’ representative, or a mine operator,
before he is allowed to be present during an inspection. Finally, the Secretary was ordered to
identify, with specificity, the hazards that Stone would have been exposed to if he had observed
Phillips’ December 14, 2005, inspection of this surface mine facility.

The Secretary’s response to the Order to Show Cause was filed on April 21, 2008.
However, the Secretary did not provide the specific information requested. Instead, the Secretary
relied on an inspector’s broad discretion to preclude walkaround rights when necessary to protect
the safety of miners. Sec’y Resp. at 7.

Stone’s reply to the Secretary’s initial response to the Order to Show Cause was filed on
May 5, 2008. Stone related that Phillips denied his request to observe the inspection, that
Phillips escorted him off of mine property, and that he was denied the opportunity to re-enter the
mine site to retrieve keys that were left in several loaders.

Given the lack of specifics in the Secretary’s response to the Order to Show Cause, a
Further Order to Show Cause was issued on May 8, 2008, requiring the Secretary to specifically
respond to the requested information in order to determine if the denial of Stone’s right to
observe the inspection was an abuse of discretion. 30 FMSHRC . A response was filed by the
Secretary on May 29, 2008. The Secretary’s response to the requested information is
summarized below:

(1) The Secretary should identify the regulations that support Phillips’ denial of Stone’s
right to observe the inspection.

The Secretary responded that she is relying on the training requirements set forth
in 30 C.F.R. § 46.5 (new miner training) and 30 C.F.R. § 46.11 (site-specific
hazard awareness training).

Sec’y Resp. II at 1.

(2) The Secretary should provide any Interpretive Bulletin or Memorandum addressing
her implementation of the walkaround rights in section 103(f) that justifies the denial of
Stone’s right to be present during the inspection.

The Secretary responded that she is relying on the Interpretive Bulletin set forth at
43 Fed. Reg. 17546 (April 25, 1978). That bulletin interprets Section 103(f) of
the Mine Act, 30 U.S.C. § 813(f), and states, in pertinent part, as follows:

Considerable discretion must be vested in inspectors in dealing with the different situations that can occur during an inspection. While every reasonable effort will
be made in a given situation to provide opportunity for full participation in an
inspection by a representative of miners, it must be borne in mind that the
inspection itself always takes precedence. The inspector’s primary duty is

to carry out a thorough, detailed, and orderly inspection.

Sec’y Resp. II at 1-2 (emphasis added).

(3) The Secretary should state whether or not a person who is not a miner, that is selected
by miners as their authorized representative, is entitled to section 103(f) walkaround
rights.

The Secretary noted that her regulations regarding representatives of miners,
which implement Section 103(f) of the Act, are set forth in 30 C.F.R. Part 40.
Section 40.1(b)(1) defines “representative of miners” as “[a]ny person or
organization which represents two or more miners at a coal or other mine for the
purposes of the Act[.]” The Secretary conceded that section 103(f) of the Mine
Act and section 40.1(b)(1) of her regulations traditionally have been interpreted to
mean that a non-miner may be a representative of miners and may participate in
an inspection. See Thunder Basin Coal Co. v. FMSHRC, 56.F.3d 1275, 1278-81
(10th Cir. 1995); Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 1262-65
(D.C. Cir. 1994); Utah Power & Light Co. v. Secretary of Labor, 897 F.2d 447,
449-52 (10th Cir. 1990).

Sec’y Resp. II at 2.

(4) The Secretary should specify, by specific reference to her regulations, the requisite
training that must be completed before a miners’ representative, or a mine operator, is
allowed to be present during an inspection.

The Secretary responded that Section 46.11 requires site-specific hazard awareness
training “for any person who is not a miner as defined by § 46.2 . . . but is present at a mine site[.]” MSHA can and normally does require that a miners’
representative receive hazard training under Section 46.11 before being allowed to
participate in an inspection.

Sec’y Resp. II at 2.

(5) The Secretary should identify, with specificity, the hazards that Stone would have been
exposed to if he had accompanied Phillips during this surface mine inspection.

The Secretary responded that the specific hazards to which Stone would have been
exposed to if he had been allowed to participate in the inspection are irrelevant
because Phillips was required to act before he began the inspection.

Assuming, for the sake of argument, that the specific hazards to which Stone
would have been exposed are relevant, the Secretary relied generally on the hazards
posed by the cited violations such as inadequate toilet facilities and a lack of traffic
signs and signs prohibiting smoking. The Secretary did not cite any meaningful
risk of exposure to hazards.

Sec’y Resp. II at 4-5.

(6) Noting that dismissal is a harsh sanction, the Secretary was requested to suggest what
sanction should be imposed, other than vacating the citations and dismissal of this
proceeding, if Phillips abused his discretion and Stone’s section 103(f) rights were
violated.

The Secretary responded that even if Inspector Phillips’ action with respect to
Stone was an abuse of discretion, dismissal is an impermissible sanction. The Secretary did not suggest any meaningful alternative sanctions.

Sec’y Resp. II at 5.

III. Discussion and Evaluation

a. The Secretary’s Regulations 

and Interpretive Bulletin

Resolution of whether Stone’s section 103(f) statutory right was unjustifiably denied is
found in the language of the statute. Section 103(f) of the Mine Act provides, in pertinent part,
“[s]ubject to regulations issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an opportunity to accompany” an MSHA inspector during an inspection.

30 U.S.C. § 813(f) (emphasis added). Consistent with this statutory provision, the Commission has recognized that the walkaround right is a
qualified right that may only be curtailed by the Secretary’s regulations. Consol. Coal,

16 FMSHRC at 718.

However, the Secretary has not proffered any regulation that supports the denial of Stone’s
section 103(f) right of accompaniment. In this regard, the Secretary’s reliance on Stone’s lack of section 46.5 new miner training, and section 46.11 hazard training, is misplaced. With respect
to section 46.5, significantly, the Secretary concedes miner training is not a prerequisite for
observing an inspection. The Secretary admits non-miners, who are designated as representatives
of miners, are entitled to section 103(f) walkaround rights. Moreover, the issue of miner training
is not material as the issue is not Stone’s qualifications to perform mining activities. Rather, the
issue is Stone’s right to observe an inspection.

Similarly, the Secretary cannot find support for Phillips’ actions in her hazard training
regulation. Section 46.11(f) provides:

Site-specific hazard awareness training is not required for any person who is
accompanied at all times by an experienced miner who is familiar with hazards
specific to the mine site.

30 C.F.R. § 46.11(f) (emphasis added).

Surely, Inspector Phillips is a qualified, “experienced” mining official who is well aware
of mine safety issues. Thus, contrary to the Secretary’s assertion, hazard training is not required if the walkaround person is accompanied by an experienced miner. In reaching this conclusion, I am not trivializing the importance of training. However, Stone’s lack of training under these
circumstances did not justify the denial of his right to accompany the inspector.

Finally, the Secretary’s relevant publicized interpretive memorandum states that “every reasonable effort” to provide the opportunity for “full participation in an inspection” shall
be afforded to section 103(f) walkaround participants. See 43 Fed. Reg. 17546. Contrary to the
Secretary’s policy, the denial of Stone’s right to observe the inspection under the circumstances in
this case lacked a concerted effort to encourage full participation.

b. Specific Hazards 

The Commission has noted that Congress did not curtail walkaround rights in dangerous situations, even during inspections seeking to determine if an imminent danger exists.
Consol. Coal, 16 FMSHRC at 718. Thus, a general belief that an area to be inspected is too
dangerous is not an adequate justification for denying walkaround rights. Id. at 718-19.
However, in extraordinary circumstances, the Secretary retains the right to preclude participation
in inspections “where necessary to protect the safety of miners” because of discrete safety hazards.
Id. at 719.

The hazards associated with the cited conditions in the subject citations, that are relied on
by the Secretary to justify Phillips’ action, posed no significant danger to Stone. For example, the
health and safety hazards created by no on-site toilet facilities, inadequate guarding, an absence of
traffic signs, a lack of “no smoking” signs, and fire extinguishers that were not periodically tested,
clearly did not present any walkaround dangers. In the absence of any extraordinarily hazardous
conditions, the Secretary has not presented a rational basis for the denial of Stone’s walkaround
right. Rather, it is apparent that the denial of Stone’s walkaround right primarily was predicated
on SCP’s failure to timely file a Legal Identity Report, rather than dictated by a concern for
Stone’s safety. Accordingly, there are no adequate safety concerns that support the denial of
Stone’s walkaround right.

c. Abuse of Discretion

The broad discretion accorded inspectors with respect to how they conduct inspections
must be balanced with the fundamental right of a mine operator to be present during an
inspection. While the decision to allow walkaround rights is committed to the broad discretion of
an inspector, his discretion is not unfettered and may not be abused. The Commission has noted
that an “abuse of discretion” occurs when “there is no evidence to support the decision or if the
decision is based on an improper understanding of the law.” Energy West Mining Co., 18 FMSHRC 565, 569 (April 1996) (citations omitted).

Phillips’ reported belief that Stone’s lack of section 46.5 new miner training rendered him
ineligible to observe the inspection is a misunderstanding of the law. As the Secretary concedes,
even non-miners have section 103(f) walkaround rights. Moreover, the Secretary’s reliance on
Stone’s lack of site-specific hazard training is undermined by the provisions of section 46.11(f)
that allow Stone to participate in the inspection without hazard training if he is accompanied by a
qualified and experienced person.

Finally, contrary to the Secretary’s assertion, the fact that a mine inspector may not have
knowledge of site-specific hazards prior to an inspection is not a basis for denying walkaround
rights to representatives of miners or mine operators. Although Phillips may not have been
familiar with the site-specific hazards at the Old County Quarry rock crushing facility before he
began his inspection, he is a qualified mine inspector with the expertise to identify and avoid
exposure to mine hazards. Any other conclusion would disqualify mine inspectors from
conducting inspections when they are unfamiliar with mine specific hazards before entering a
mine. Thus, site-specific hazard awareness was not a prerequisite for Stone to accompany Phillips
during the inspection.

d. Appropriate Sanction

The cited violative conditions have been corrected and the subject citations have been
terminated. Consequently, there are no unresolved continuing safety issues. I believe this is a
matter of first impression. I am cognizant that dismissal is a harsh sanction. However, a mine
operator’s right to accompany an inspector must not arbitrarily be denied. The mine inspector’s
abuse of discretion in this matter requires my exercise of discretion. For to do nothing would be
an abuse of my discretion.

Commission Rule 55(h) authorizes the judge to make decisions in the proceedings before him. 29 C.F.R. § 2700.55(h). Under these circumstances, vacating the subject citations
and dismissing these proceedings is an appropriate sanction. Dismissal should deter future
unwarranted denial of a mine operator’s walkaround right. Consequently, the subject 104(g)(1)
order and 104(a) citations will be vacated without prejudice. The Secretary may reissue the
citations if the actions taken to abate the citations are rescinded, or, if the cited conditions
otherwise remain unabated.

ORDER

In view of the above, IT IS ORDERED that 104(g)(1) Order No. 6122908 and 104(a)
Citation Nos. 6122909, 6122910, 6122911, 6122912, 6122913, 6122914, 6122916, 6122917,
6122918 and 6122919 in Docket No. SE 2006-148, and, 104(a) Citation No. 6122915 in Docket No. SE 2006-163 ARE VACATED without prejudice. IT IS FURTHER ORDERED
that the captioned civil penalty proceedings ARE DISMISSED.

Jerold Feldman

Administrative Law Judge

Distribution: (Regular and Certified Mail)

Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219

Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723

/rps