Secretary of Labor v. John Richards Construction

Plain-English summary

An MSHA inspector arrived unannounced at John Richards Construction's Montana sand and gravel mine, but the owner repeatedly said the inspector could not enter until the owner returned several hours later and directed staff to lock the gate. Judge Jacqueline R. Bulluck held that the verbal refusal and locked gate violated MSHA's statutory right of entry, even if the inspector could have stepped over the barrier or conducted the inspection without an operator representative. She found the violation very serious and highly negligent because it was intentional and followed earlier obstructive conduct toward inspectors. The Judge denied late requests for depositions and oral argument, granted summary decision to the Secretary, affirmed the citation, and assessed the proposed $1,000 penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 813(a)
• Outcome: Summary decision was granted, the intentional entry-refusal citation was affirmed, and a $1,000 penalty was assessed.
• Key point: A mine operator cannot delay an unannounced MSHA inspection until its preferred representative arrives, and an inspector need not force entry or risk confrontation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

August 25, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

JOHN
RICHARDS CONSTRUCTION,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No.:  WEST 2014-440-M

A.C.
No.:      24-02070-343369

Mine:
Richards Pit

SUMMARY DECISION

ORDER DENYING
DEPOSITIONS

ORDER DENYING
ORAL ARGUMENT

Before:                        Judge
Bulluck

This
case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health
Administration (“MSHA”) against John Richards Construction (“JRC”), pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30
U.S.C. § 815. The Secretary
seeks a civil penalty in the amount of $1,000.00 for one alleged violation of section
103(a) of the Act.

The
Secretary filed a Motion for Summary Decision with an accompanying Memorandum
of Points and Authorities (“Sec’y Br.”) and attached exhibits (“Exs. P-1
through P-4”), and JRC responded with a Reply Brief (“Resp’t Br.”) opposing the
Motion, requesting the court to order depositions of MSHA inspector Peter
Crites and his supervisor, Curtis Petty, and requesting an oral argument on the
Motion. Both parties subsequently filed Reply Briefs in further support of
their respective positions (“Sec’y Reply Br.” and “Resp’t Br. II”). The
following are issues for resolution in this case: (1) whether JRC violated section 103(a) of the Act, and if
so, (2) the appropriate penalty.

Commission Rule 56(e) states that “[d]iscovery shall not unduly
delay or otherwise impede disposition of the case.” 29 C.F.R. § 2700.56(e). Respondent has not
presented any evidence that it requested depositions prior to filing its Reply
Brief, and this court does not find that they would be appropriate or necessary
at this late stage of the proceedings. There is more than sufficient evidence
in the record to resolve the matter at issue, and further discovery would prove
unduly burdensome to orderly and expeditious disposition of the case. Therefore,
JRC’s request to take depositions is hereby DENIED.

Pursuant
to Commission Rule 67(b), “[a] motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows: (1) [t]hat there is no genuine issue as to any material
fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.” 29 C.F.R.        § 2700.67(b). When considering
a motion for summary decision, the court looks at the record “‘in
the light most favorable to . . . the party opposing the motion,’ and . . . ‘the
inferences to be drawn from the underlying facts contained in [the] materials
[supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.”’ Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9
(Jan. 2007) (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

Based on the facts represented by the parties, I find that there
is no genuine issue as to any material fact, and that oral argument is
unnecessary to resolve this matter. Therefore, Respondent’s Motion for an Oral
Argument is hereby DENIED. For the reasons set forth below, I conclude
that the Secretary is entitled to summary decision as a matter
of law on the issue of whether JRC violated the Act. Accordingly, I AFFIRM
the Citation, as issued, and assess a penalty against Respondent.

I.                  
FACTUAL BACKGROUND

The
Richards Pit is a sand and gravel mine in Seeley Lake, Montana, owned and
operated by JRC. Ex. P-1 at 2, ¶ 6. John Richards is the owner of JRC. Aff. of
John A. Richards ¶ 1. On Friday, July 19, 2013, at 11:40 am, MSHA Inspector
Peter Crites arrived at the Richards Pit to conduct a regular inspection. Ex. P-1
at 2, ¶ 7-8. Upon
arrival, Crites proceeded to the office building in front of the mine, where he
notified JRC office personnel, Cindy Llewellyn and Kim Myre, that he was there
to conduct an inspection and asked to speak to Richards. Ex. P-1 at 2,  ¶ 8-9; P-2 at 9-10. Llewellyn
told Crites that Richards was in Missoula, Montana, on business, and that she
could not let Crites enter the mine. Ex. P-1 at 3, ¶ 10; P-2 at 10. Crites asked if there was anyone else
on-site that could accompany him on an inspection, and Llewellyn responded that
she “thought Kerry the mechanic was out there,” but regardless, she could not
let the inspector enter. Ex. P-2 at 10.

At
this point, Llewellyn called Richards, and Crites went outside to his vehicle
to call his supervisor, Curtis Petty. Ex. P-1 at 3, ¶ 11; P-2 at 10. Llewellyn then went out on the porch
and let Crites know that Richards was on the phone, and that he had directed
her to lock the gate, which she then proceeded to do. Ex. P-1 at 3, ¶ 12, 14; P-2 at 10. Llewellyn
later informed him that Richards had also instructed her and Myre to prevent
access by parking their vehicles in front of the gate. Ex. P-1 at 3, ¶ 15; P-2 at 11. However, there
is no indication in the record of whether Llewellyn and Myre actually moved
their vehicles to the gate. Crites spoke with Richards on the phone, and
Richards told the inspector that “[he] could not enter the premises without
[Richards] being there to accompany him.” Resp’t Br. at 1; Ex. P-1 at 3, ¶ 13. According to Crites,
Richards “repeated this direction to not enter the mine site at least four (4)
more times,” and JRC has not disputed this claim. Ex. P-1 at 3, ¶ 13.

Crites
spoke to Richards again on the phone; Richards informed him that he would be
returning some time between 4:00 and 4:30 p.m., and reiterated that Crites
should not enter the property until his arrival. Ex. P-1 at 3, ¶ 16; P-2 at 11; Answer to Pen.
Pet. Around noon, Crites observed a male individual enter a vehicle on the
inside of the locked gate and drive off the premises, presumably from another
entrance. Ex. P-1 at 3, ¶ 17.
In a signed statement provided to the Secretary, Myre speculated that this man
would have been Mark Smith, an employee who was at the site to pick up a
paycheck. Ex. P-2 at 9. Following the instructions of his supervisor, Petty,
Crites waited at the mine, issued a citation, left it on the front porch of the
office at 4:15 p.m., and drove away at 4:20 p.m.; Richards had not returned to
the mine by that time. Ex. P-1 at 4, ¶ 20-22.

II.               
MATERIAL
FACTS

1.     
There
are No Genuine Issues of Material Fact

JRC
contends that there are disputed facts in this matter that can only be resolved
through an oral argument and hearing. However, looking at the record in the
light most favorable to Respondent, I am unable to find any material fact in
dispute.

JRC
takes the position that the “gate is not on the mine site,” but rather that it
is adjacent to the Richards Pit, and that Crites would have had “to cross
[Richards’] private property not part of the mine” to access the mine. Resp’t
Br. at 1; Ex. P-2 at 2. Furthermore, JRC states that “[i]t is a disputed fact
that [Llewelyn] locked the gate.” Resp’t Br. at 1. However, Llewellyn, herself,
states, “I told [Crites] per [Richards] I was to go lock the gate at which time
I did.” Ex. P-2 at 10. Myre’s statement is nearly identical, explaining that
“[Llewelyn] locked the gate per [Richards’] instructions.” Ex. P-2 at 9.
Moreover, Richards’ own notes state that he instructed Llewellyn to lock the
gate and block access. Ex. P-2 at 11. JRC has not advanced any evidence to the
contrary and, therefore, I find that, upon Richards’ orders, Llewelyn did, in
fact, lock the gate, which provided access to the mine through adjacent
property.

Respondent
also alleges that “[t]he inspector did not follow proper procedure.” Resp’t Br.
at 2. However, it is unclear as to what procedure Respondent is referencing. JRC
has quoted a series of requirements from MSHA’s Program Policy Manual without
specifying which one Crites failed to follow or how it would affect the outcome
of this case. Resp’t Br. at 2. Consequently, I find no genuine factual dispute
respecting Crites’ conduct in initiating the inspection.

2.     
Any
Facts in Dispute Are Not Material

None
of the remaining facts, while disputed, are material to the disposition of this
proceeding. JRC disputes Crites’ observations of fresh gravel at the mine, arguing
that the mine was not in operation, and that no miners were present on the day
of the inspection. Resp’t Br. at 2. However, the validity of these allegations
would have no bearing on the Secretary’s right of entry under section 103(a). An
authorized agent of the Secretary may conduct regular inspections of a mine irrespective
of whether it is operating at the time or miners are present. As the judge found
in a similar case involving a denial of entry, “[i]f [the operator] could not
find someone to [accompany the inspector], [the operator] was obliged to permit
[the inspector] to conduct his inspection unaccompanied.” F.R. Carroll, Inc.,
26 FMSHRC 97, 102 (Feb. 2004) (ALJ).

JRC
also contends, contrary to Crites’ Affidavit, that Crites did not give anyone
at the company notice that it would be cited for refusing entry. Resp’t Br. at

2. In this regard, Crites has stated that he “explained to [Richards] MSHA’s
   right to entry under the Mine Act and that JRC would be cited for a violation
   of section 103(a) of the Mine Act if entry was refused.”   Ex. P-1 at 4, ¶19. Without disputing that
   Crites explained MSHA’s right of entry under the Act, JRC responds that “[a]t
   no time did Mr. Crites tell JRC or the office staff that they would be sited [sic]
   for a violation of section 103(a) of the Mine Act for refusing entry.” Resp’t
   Br. at 2. It is unnecessary, however, to resolve this factual dispute. While it
   is reasonable to believe that an inspector, upon denial of entry, who engaged
   in repeated conversations with mine personnel and management over this issue,
   would have advised an operator of MSHA’s rights under section 103(a) and that
   failure to permit entry would result in a violation, there is no requirement
   that an inspector threaten an operator or otherwise warn it of an impending
   citation in order to achieve cooperation and compliance.

Lastly,
in the context of contesting the Secretary’s proposed penalty assessment of
$1,000.00, JRC states that it is a disputed fact whether Richards acted in good
faith by returning to the mine as soon as possible. Resp’t Br. at 3. Whether
Richards’ decision to return to the mine late in the afternoon constitutes good
faith compliance does not affect the fact of violation, but rather is a
criterion considered in setting an appropriate penalty.

III.            
FACT
OF VIOLATION

Crites
issued 104(a) Citation No. 8762607, alleging a violation of section 103(a) of
the Act that had “no likelihood” of causing an injury resulting in “no lost
workdays,” and was caused by JRC’s “high” negligence. The “Condition or
Practice” is described as follows:

Mr. John
Richards, owner of Richard’s Pit, John Richards Construction, refused to allow
an authorized representative to enter the mine. Mr. Richards stated via
telephone that the MSHA inspector could not enter the mine to conduct an
inspection without his presence. Two office personnel and a mechanic were
present. Cindy Llewellyn, one of these office personnel, was instructed by Mr.
Richards via telephone to lock the gate and position two cars in front of it.
She proceeded to lock the gate. The mechanic and the two office personnel got
in their cars and left the mine site. Prior to leaving, Ms. Llewellyn stated
that she would be back and Mr. Richards would be there at 4 o’clock. Cindy was
advised that refusal to allow the inspection was a violation of the provisions
of Section 103(a) of The Mine Act. John Richards is well aware of this
provision of The Mine Act, and has impeded past inspections. This condition has
not been designated as “significant and substantial” because the conduct
violated a provision of the Mine Act rather than a mandatory safety or health
standard.

Ex.
P-1A at 1-2. The citation was terminated on Monday, July 22, 2013, upon Crites’
return to the Richards Pit, when Richards permitted him entry for an
inspection. Ex. P-1A at 3.

The
Secretary argues that JRC directly denied Crites entry to the mine, in
violation of section 103(a), when Richards repeatedly told him that he could
not enter the mine until he returned. Sec’y Br. at 8. The Secretary also argues
that Richards’ direction to his employees to lock the entrance gate and park
their vehicles to block Crites’ access to the mine constituted an indirect
denial of entry. Sec’y Br. at 8. Respondent, on the other hand, denies that it
interfered with the inspection in a way that frustrated the inspector’s
legitimate objectives, and defends Richards’ behavior on safety grounds. Resp’t
Br. at 1-2.

IV.            
DISCUSSION
& ANALYSIS

Section
103(a) of the Act, in pertinent part, provides that, for the purpose of making
any inspections under the Mine Act, any authorized representative of the
Secretary “shall have a right of entry to, upon or through any coal or other
mine.” 30 U.S.C. § 813(a). It is well-settled Commission precedent that a
refusal to permit an inspection is a violation of section 103(a) for which a
penalty must be imposed. Waukesha Lime and Stone Co., 3 FMSHRC 1702,
1703 (July 1981).

The
issue presented in this matter is whether JRC’s verbal refusal to permit Crites’
entry until 4:00 to 4:30 that afternoon, when Richards was set to return from
Billings, and JRC’s subsequent actions of locking the gate, constituted a
denial of the Secretary’s right of entry in violation of section 103(a) of the
Act.[1] I find that
it did.

JRC
indirectly denied the inspector entry when its employees locked the gate to the
mine upon Richards’ orders. While this indirect denial would, by itself,
justify affirming the Citation, Richards, by his own admission, directly denied
Crites access to the mine. In JRC’s Reply, the company states that Richards
told Crites that “[he] could not enter the premises without [Richards] being
there to accompany him.” Resp’t Br. at 1. Apparently, Respondent does not
consider Richards’ conduct a denial of entry, advancing two theories as to why
there was not “any interference from the mine operator that frustrated the
[inspector’s] legitimate objectives.” Resp’t Br. at 2. First, the mine was
deserted, non-operational, and “exactly the same when inspected as when Mr. Crites
first arrived at the mine.” Resp’t Br. at 2-3. Second, the gate, itself, “was a
chain and bar about knee high” and, therefore, Crites could have “stepped over
the chain and entered” if he had wished to exercise his section 103(a) rights. Resp’t
Br. at 2. Neither argument is persuasive.

As
the Commission has explained, “[s]ection 103(a) expressly requires that no advance
notice be given an operator prior to an inspection and gives authorized
representatives of the Secretary an explicit right of entry to all mines for
the purpose of performing inspections authorized by the Act.” Calvin Black
Enterprises, 7 FMSHRC 1151, 1156 (Aug. 1985). The Commission has found
unreasonable delay to constitute a section 103(a) violation, at least in the
context of an accident investigation. See U.S. Steel Corp., 6
FMSHRC 1423, 1433 (June 1984). Similarly, Commission Administrative Law Judges
(“ALJs”) have also found section 103(a) violations in cases involving
unreasonable delays of inspections. See, e.g., F.R. Carroll, Inc.,
26 FMSHRC 97, 102 (Feb. 2004) (ALJ) (finding an operator’s request to delay an
inspection by five hours unreasonable and a violation of section 103(a)); Sanger
Rock & Sand, 11 FMSHRC 403, 406-07 (Mar. 1989) (ALJ).

Crites
attempted to begin his inspection at or around 11:40 on Friday morning. He was
directly denied entry by JRC and told to wait until 4:00 or 4:30 that afternoon.
I find that by refusing Crites’ entry and demanding that the inspection be
delayed until Richards’ return, JRC not only interfered with the inspector’s
right of entry, but also undermined the prohibition against giving operators
advance notice of inspections.

While
Respondent claims that the conditions of the mine remained unchanged between
Friday morning when Crites attempted his inspection, and the following Monday
when the inspection finally occurred, the primary purpose of “unannounced
inspections proceeding without delay” is to “encourage compliance by preventing
mine operators from concealing hazardous violations upon learning that mine
inspectors have arrived on the premises.” F.R. Carroll, Inc., 26 FMSHRC
at 102. Even in a related case where neither the respondent nor any of its
employees were present at the mine site on the day of the inspection, and where
the ALJ found the operator’s request for a delay of the inspection to have been
made in good faith, the judge reasoned that “had the inspector agreed to delay
the inspection [as per the operator’s request] it is possible they could have
made efforts to clean up any violations before the inspector arrived on site
the following day.” DJB Welding Corp., 32 FMSHRC 728, 731 (June 2010) (ALJ).
The judge concluded that “exceptions cannot be carved out from a statutory mandate
that explicitly states ‘no advance notice of an inspection shall be provided to
any person.’” Id. I agree.

JRC’s
second argument is, likewise, without merit. While JRC’s gate might have been a
minor obstacle, in and of itself, the Commission has only required for a section
103(a) violation that entry be refused, not that it be made physically
impossible. In Calvin Black Enterprises, 7 FMSHRC 1151, 1157 (Aug.
1985), the Commission clarified that operators need not physically prevent
inspectors from conducting their inspections in order to violate section
103(a). In that case, there was sufficient evidence of a section 103(a)
violation where inspectors were advised that they were trespassing and needed
to obtain written permission from the mine’s owner before inspecting the mine. Id.
As the Commission explained, “MSHA inspectors are not required to force entry
or to subject themselves to possible confrontation or physical harm in order to
inspect.” Id. In the instant case, based on his conversations with
Richards and Llewelyn, and JRC’s subsequent blocking of the gate, Crites would
have been justified in thinking that he might have to force entry or subject
himself to possible confrontation in order to gain entry.

Having
failed to rebut that its actions constituted a denial of entry under section
103(a) of the Act, JRC seeks to defend its conduct by explaining that Richards’
presence was required “to insure company policies are followed for the safety
of anyone on [his] property.” Resp’t Br. at 1. The company’s apparent argument is
that it was necessary for Richards to accompany Crites for his own safety. However,
section 103(a) does not contain any such condition or limitation on the
Secretary’s right of entry. Therefore, Respondent has failed to proffer a valid
defense for Richards’ actions and, by his direction, that of his employees, and
I find that section 103(a) was violated.

The
Commission has recognized that “denial of access to an MSHA inspector . . . is
an action not to be taken lightly.” Tracey & Partners, 11 FMSHRC
1457, 1464 (Aug. 1989). In line with this recognition, ALJs have regularly
found denial of entry to be serious violations. See F.R. Carroll,
Inc., 26 FMSHRC at 103; Higman Sand & Gravel, Inc., 23 FMSHRC
876, 877 (Aug. 2001) (ALJ); Topper Coal Co., Inc., 17 FMSHRC 945, 955
(June 1995) (ALJ), aff’d, 20 FMSHRC 344 (Apr. 1998); John Cullen Rock
Crushing & Gravel, 16 FMSHRC 909, 915 (Apr. 1994) (ALJ); Sherman
Lime and Rock Co., 4 FMSHRC 384, 394 (Feb. 1982) (ALJ). Accordingly, I find
the gravity of this violation to be very serious.

On
the face of the citation, Crites alleges that Richards is well aware of the
requirements of section 103(a), and that he has impeded past inspections. Ex.
P-1A at 1-2. In Crites’ Affidavit, he states that he reviewed MSHA’s inspection
history of the mine prior to his arrival on July 19, and discovered that
Richards “had previously called the local Sherriff on an MSHA inspector for
trespassing,” and had “taken measure[s] to interfere with inspectors taking
photographs of conditions violating the Mine Act.” P-1 at 4, ¶ 24. Moreover, in
establishing jurisdiction, the Secretary cites to a case that illuminates
another instance of obstructive behavior at the Richards Pit. Sec’y Br. at 3 n.1.
In that case:

When [MSHA] Inspector
Smith arrived he talked to Mr. Carl Tanner[, an agent of JRC]. When Tanner
discovered that Smith was an MSHA employee, Tanner told Smith that he was going
to shut the plant down. Tanner walked through the plant to the other side, shut
it down, and left with the other employee. As they were leaving, Tanner told
Smith that he was not going to participate in the inspection and that he could
“[w]rite anything you want - I've seen it all before.”

John
Richards Construction,
23 FMSHRC 1045, 1046 (Sept. 2001) (ALJ) (citation omitted). This evidence,
taken together, suggests an uncooperative attitude and pattern of obstructive
behavior on the part of the company, dating back several years, that should not
be tolerated.

Furthermore,
the Commission has held “that an operator's intentional violation constitutes
high negligence for penalty purposes.” Topper Coal Co., Inc., 20
FMSHRC 344, 350 (Apr. 1998) (quoting Consolidation Coal Co., 14
FMSHRC 956, 969-70 (June 1992)). JRC has advanced no argument that Richards was
unaware of MSHA’s right of entry, that the inspector did not inform him of that
right, or that Richards had not told his employees to block the gate with their
vehicles. Therefore, based on the circumstances surrounding the instant
violation and JRC’s history of contempt for MSHA’s authority to inspect its
facility, I conclude that Richards’ communications with Crites and his
instructions to his staff constituted a deliberate denial of entry. Accordingly,
I find JRC highly negligent in violating the Act.

V.    PENALTY

The Secretary has specially assessed a proposed penalty of $1,000.00
for this violation pursuant to his Part 100 Regulations, and justifies this assessment
by stating that the denial of entry was intentional and a very serious
violation of the Act. Sec’y Br. at 11. JRC argues that a special assessment would
serve no public good and notes that a regular assessment, under the Secretary’s
Part 100 Regulations, would be $100.00. Resp’t Br. at 3.

Part 100 of the Secretary’s Regulations states that “MSHA may
elect to waive the regular assessment . . . if it determines that conditions
warrant a special assessment.” 30 C.F.R.       § 100.5(a). The U.S. Court of
Appeals for the District of Columbia Circuit has held that “[t]he special
assessment … is designed for particularly serious or egregious violations.” Coal
Employment Project v. Dole, 889 F.2d 1127, 1129-30 (D.C. Cir. 1989). In
cases involving denial of entry, there are different levels of egregious
conduct, including, at the most extreme end of the spectrum, situations in
which mine management has physically assaulted inspectors in order to prevent
inspections, resulting in serious injury. See, e.g., Baker Coal Co.,
2 FMSHRC 2626, 2627 (Sept. 1980) (ALJ). While the instant matter does not
involve behavior that would reasonably be found to be extreme, there is clear
evidence that JRC is well-versed on the Secretary’s right of entry under
section 103(a), and that this behavior is not isolated. JRC’s history of
obstructive and uncooperative behavior toward MSHA inspectors makes this
violation particularly egregious. Therefore, I find that the Secretary was well-justified
in proposing a specially assessed penalty.

Notwithstanding the Secretary’s authority to propose a specially
assessed penalty, 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, 20 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff'd 736 F.2d 1147 (7th Cir.
1984).

I find that JRC is a small operator with no prior violations of section
103(a) of the Act during the relevant time period and, therefore, an overall violations
history that is not an aggravating factor in assessing an appropriate penalty. See
Ex. P-4 at 2. JRC asserts that the proposed penalty “would be devastating to
this small mine’s continued operation,” but outside of this bare assertion,
Respondent has not proffered any evidence that would support this claim. Resp’t
Br. at 3. The Commission has held that “[i]n the absence of proof that the
imposition of authorized penalties would adversely affect [an operator's]
ability to continue in business, it is presumed that no such adverse [e]ffect
would occur.” Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining
Co., 2 IBMA 226, 247-48 (Sept. 1973)); accord Spurlock Mining Co.,
16 FMSHRC 697, 700 (Apr. 1994). See also Steele Branch Mining, 18 FMSHRC
6, 15 (Jan. 1996). Therefore, I find that the proposed penalty will not affect
JRC’s ability to continue in business. I also find,
given Richards’ adherence to his position despite clear warnings from Crites, that
JRC failed to demonstrate good faith in achieving rapid compliance after notice
of the violation. The
remaining criteria involve the gravity of the violation and JRC’s negligence in
committing it. As has been discussed fully, I find the violation to be very
serious, and the result of the operator’s high negligence.

It has been established that this serious violation of section
103(a) of the Act had no reasonable likelihood of causing an injury resulting
in lost workdays or restricted duty, that JRC was highly negligent, and that it
did not demonstrate good faith in achieving rapid compliance. Therefore, I find
that the penalty of $1,000.00, as proposed by the Secretary, is appropriate.

ORDER

WHEREFORE, the Secretary’s Motion for
Summary Decision is GRANTED, and it is ORDERED that Citation No. 8762607
is AFFIRMED, as issued, and that John Richards Construction PAY a
civil penalty of $1,000.00 within 30 days of the date of this Decision.[2]

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Tyler
P. McLeod, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204

John
Richards, John Richards Construction, 2824 Highway 83 North, P.O. Box 316,
Seeley Lake, MT 59868

/rd

[1] JRC has not
asserted that Crites denied anyone the right to accompany him during his
inspection pursuant to section 103(f) of the Act and, therefore, the argument
need not be addressed in detail. It would be inapplicable here in any event, as
section 103(f) only offers “a representative of the operator . . . an opportunity
to accompany the Secretary or his authorized representative during the . . .
inspection.” 30 U.S.C. § 813(f) (emphasis added). Crites provided ample
opportunity for any available representative of the operator, including the
mechanic that Llewellyn thought was on-site, the employee who was picking up a
paycheck, or the office personnel, themselves, to accompany him during the approximate
four and a half hours that he waited for Richards to return. Llewellyn,
instead, informed Crites that he could not enter the mine even if Kerry, the
mechanic, were present that day.

[2] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.