SCP Investments, LLC

Plain-English summary

MSHA issued 12 citations after inspecting SCP Investments' new rock-crushing facility and ordered managing partner Pat Stone off the property because he lacked Part 46 training. Judge Jerold Feldman noted that Mine Act section 103(f) gives an operator representative the right to accompany an inspector and that filing failures do not by themselves defeat that right. He ordered the Secretary to identify the regulation or policy that authorized Stone's exclusion, specify the training required for an operator representative, and identify the hazards Stone would have faced. The Commission later reviewed the dismissal and walkaround-right ruling that followed this show-cause process.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 41.10 and 41.11(a); 30 U.S.C. §§ 813(f) and 819(d)
• Outcome: The Secretary was ordered to show cause why the 12 citations should not be vacated because of the operator's exclusion from the inspection.
• Subsequent review: The Commission later reviewed the resulting dismissal in se-2006-148-m-commission.
• Key point: Denying an operator's walkaround right requires an identified legal basis, required training rule, and concrete safety justification.

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

March 31, 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

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 violations 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. 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). Thus, the right to accompany an inspector during an inspection is an
important right that may only be curtailed by the Secretary’s regulations. Consolidation Coal
Co., 16 FMSHRC 713, 718 (Apr. 1994). Therefore, in extraordinary circumstances, the
Secretary may preclude walkaround rights of miners’ representatives “where necessary to protect
the safety of miners.” Id. at 719.

The Commission has rejected the failure to comply with MSHA filing requirements
as a basis for denying section 103(f) “walkaround rights.” Emery Mining Corporation,
10 FMSHRC 276, 277 (Mar. 1988) (failure of a nonemployee 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).
The Commission has also rejected the denial of walkaround rights based on an operator’s good
faith reasonable belief that the area to be inspected was too dangerous to be entered.
Consolidation Coal, 16 FMSHRC at 718-19.

In view of the above, IT IS ORDERED that the Secretary 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 should identify any
regulation that identifies the circumstances that warrant the denial of a mine operator’s right to
accompany an inspector. In addition, the Secretary should provide any Interpretive Bulletin or Memorandum addressing her implementation of the walkaround rights in section 103(f).
The Secretary also should 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 should 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 may provide any additional information
deemed appropriate.

IT IS FURTHER ORDERED that the Secretary’s response shall be filed within 21 days
of this Order. If SCP Investments, LLC, wishes to respond to the Secretary, it should do so within 14 days of receipt of the Secretary’s response to this Order.

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