SCP Investments, LLC

Plain-English summary

MSHA issued 12 citations after inspecting SCP Investments' new rock-crushing operation. The inspector excluded managing partner Pat Stone from the property and inspection because Stone lacked Part 46 miner training. Judge Jerold Feldman found that MSHA's first show-cause response did not identify a regulation, policy, required training, or specific hazard that justified denying the operator's statutory walkaround right. He ordered the Secretary to provide those details and propose a sanction short of dismissal within 21 days, warning that another inadequate response could result in dismissal. The Commission later reviewed the resulting dismissal and walkaround-right ruling.

Decision snapshot

• Governing provision: 30 U.S.C. § 813(f)
• Outcome: The Secretary was ordered to provide specific legal and factual support for excluding the operator from the inspection.
• Subsequent review: The Commission later reviewed the resulting dismissal in se-2006-148-m-commission.
• Key point: An inspector's discretion to protect safety does not eliminate the need to identify a legal basis and concrete hazards when denying an operator's inspection walkaround right.

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, D.C. 20001

May 8, 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

FURTHER ORDER TO SHOW CAUSE

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 cited violative conditions have been corrected and the subject citations
have been terminated.

The Old County Quarry is a rock crushing facility operated by SCP Investments, LLC
(“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 (“Mine Act”), requires a mine operator to file with the Secretary of Labor
(“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).

At the time of Phillips’ inspection, SCP had not filed the required Legal Identity Report
Form registering the facility as an active mine. Consequently, on December 14, 2005, Phillips
ordered Stone to leave the mine property rather than allow Stone to accompany him during the
mine inspection, reportedly because it was too dangerous given Stone’s lack of Part 46 miner
training. See 30 C.F.R. Part 46. Stone, on behalf of SCP, objects to not being allowed to remain
on mine property during the inspection.

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). “The 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). This fundamental right is a qualified right that
may only be curtailed by the Secretary’s regulations. Id. at 718. In extraordinary circumstances,
the Secretary may preclude the right to accompany an inspector “where necessary to protect the
safety of miners.” Id. at 719.

On March 31, 2007, the Secretary was ordered to show cause, in writing, why the subject
citations should not be vacated because MSHA’s mine inspection violated the provisions of
section 103(f) of the Mine Act. Specifically, the Secretary was requested to identify any
regulation that describes the circumstances that warranted Phillips’ denial of Stone’s right to
observe the inspection. In addition, the Secretary was requested 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
specify, 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 accompanied Phillips on December 14, 2005, during this
surface mine inspection.

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’s Resp. at 7.

Stone’s reply to the Secretary’s April 21, 2008, 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.

As a threshold matter, the wide discretion that must be afforded 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’ reliance on Stone’s lack of miner training as a basis for denying his section 103
walkaround rights appears to be an “improper understanding of the law.” Miner training is a
prerequisite for performing mining activities. Miner training is not required to observe an
inspection. Although hazard training may be required prior to the exercise of walkaround rights,
despite having been ordered to do so, the Secretary has yet to identify any hazard to support
Phillips’ refusal to allow Stone to observe the inspection.

Accordingly, in order to determine if Phillips’ denial of Stone’s walkaround right was an
abuse of discretion and a violation of section 103(f), the Secretary IS ORDERED to provide the
following:

(1) The Secretary should state whether or not she is relying on her regulations to support
Phillips’ denial of Stone’s right to observe the inspection. If she is relying on her regulations, the
Secretary should provide a copy of the pertinent regulatory provisions.

(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. If she is not relying on an Interpretive Bulletin or
Memorandum she should so state.

(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 should identify the statutory and/or regulatory provisions, if any, to support her
position.

(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. If the Secretary believes a miner’s representative must have Part 46 new miner training prior to accompanying an inspector during an inspection she should
identify the statutory and/or regulatory provisions, if any, to support such a position.

(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.

(6) Dismissal is a harsh sanction. Assuming, for the sake of argument, that Phillips
abused his discretion and Stone’s section 103(f) rights were violated, what sanction, short of
vacating the citations and dismissal of this proceeding, does the Secretary suggest be imposed in
this matter.

IT IS FURTHER ORDERED that above information should be provided by the
Secretary within 21 days of the date of this Order. Failure to provide a timely response that
directly addresses the information requested may result in the dismissal of this civil penalty
matter.

Jerold Feldman

Administrative Law Judge

(202)434-9967

Distribution: (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