Peabody Twentymile Mining, LLC v. Secretary of Labor (ALJ decision, January 24, 2018)

Plain-English summary

Peabody Twentymile Mining subpoenaed two current MSHA inspectors to testify about the mine's practice of using a metal hook to remove material from a conveyor. The underlying citation alleged that a miner performed this work while the feeder conveyor was moving, in violation of 30 C.F.R. § 75.1725(c). Judge Richard W. Manning found that the subpoenaed inspectors had not witnessed the cited event and could offer only general knowledge from their earlier employment at the mine. Other current mine employees could provide the same information, while witnesses with firsthand knowledge could better address negligence and unwarrantable failure. The Judge granted the Secretary's motion and quashed both subpoenas without deciding the citation or imminent-danger order.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(c)
• Outcome: The subpoenas for Tracy Santistevan and Robert Teeter were quashed, and the underlying cases continued.
• Key point: A party cannot require cumulative testimony from current agency inspectors when other witnesses can provide the same general information and the inspectors lack firsthand knowledge of the cited event.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

Office of

Administrative Law Judges

721 19th Street, Suite

443

Denver, CO 80202-2536

303-844-3577 FAX

303-844-5268

January 24, 2018

PEABODY

TWENTYMILE MINING,       

LLC,

Contestant,

v.

SECRETARY

OF LABOR,

MINE

SAFETY AND HEALTH

ADMINISTRATION

(MSHA),

Respondent

SECRETARY

OF LABOR,

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

PEABODY

TWENTYMILE MINING,

LLC,

Respondent

CONTEST

PROCEEDINGS

Docket

No. WEST 2017-0247-R

Order

No. 9025723;02/19/2017

Docket

No. WEST 2017-0248-R

Citation

No. 9025724;02/19/2017

Foidel

Creek Mine

Mine

ID 05-03836

CIVIL

PENALTY PROCEEDING

Docket

No. WEST 2017-553

A.C.

No. 05-03836-439555

Foidel

Creek Mine

ORDER GRANTING THE

SECRETARY’S MOTION TO QUASH SUBPOENAS

Before: 

Judge Manning

These cases are before me upon

notices of contest filed by Peabody Twentymile Mining, LLC, (“Twentymile”) and

a petition for assessment of civil penalty filed by the Secretary of Labor,

acting through the Mine Safety and Health Administration (“MSHA”), against Twentymile

pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”).   On January 22, 2018 the

Secretary moved to quash two subpoenas issued for the trial testimony of Tracy

Santistevan and Robert Teeter which is scheduled for February 13, 2018.  For

reasons that follow the Secretary’s motion is granted.

On January 5, 2018 counsel for

Twentymile requested two subpoenas for the trial testimony of Tracy Santistevan

and Robert Teeter.  Subsequently, on January 8, the court issued the requested

subpoenas.  On January 22 the Secretary emailed the court and moved to quash

the subpoenas.  The following day the court convened a conference call during

which the parties presented their positions on the Secretary’s motion.

These cases involve one section

104(d)(1) citation and a corresponding imminent danger order.  The citation alleges

a violation of 30 C.F.R. § 75.1725(c) and states, in part, that the issuing

inspector observed a “miner with a piece of roof bolter steel with a metal hook

attached to the end removing wood and metal from the moving feeder conveyor.”  (Citation

No. 9025724).  During the conference call, Twentymile argued that the

subpoenaed individuals previously worked for Twentymile and are needed to

provide testimony regarding the practice of “fishing,” i.e., the removal of

materials from a conveyor via the use of a metal hook.  The Secretary, in

response, argued that the testimony of the subpoenaed individuals is not relevant

given that the individuals are no longer employees of Twentymile and, rather,

are now MSHA inspectors who were not present at the time the subject

enforcement actions were issued and have never observed the practice of

“fishing” as inspectors. 

The Commission’s procedural rules

grant its judges discretion to regulate discovery “to prevent undue delay or to

protect a party or person from oppression or undue burden or expense” for “good

cause shown.” 29 C.F.R. § 2700.56(c).  Judges have utilized that discretion to

“limit needless, speculative, overly broad, or duplicative discovery.”  North

American Quarry and Constr. Services LLC , 38 FMSHRC 583, 586 (Mar. 2016)

(ALJ) (citations omitted).  Judges are, similarly, afforded considerable

discretion when it comes to regulating the course of a hearing and determining

what to receive into evidence.  29 C.F.R. § 2700.55.  Moreover, a judge may

revoke a subpoena “for any other reason it is found to be . . . unreasonable.” 

29 C.F.R. § 2700.60(c).

I find that the testimony sought

from the subpoenaed individuals will be unreasonably cumulative or duplicative and

can be obtained from witnesses currently employed by Twentymile.  There has

been no showing that the testimony of the two inspectors would present facts

that only they possess.  The subpoenaed individuals were not present at the

time the subject citation and order were issued.  Any testimony they could offer

would relate to their general knowledge of the “fishing” process based on their

time working at the mine prior to becoming MSHA inspectors.  That same

testimony can be obtained from others who are working at the mine, as evidenced

by Twentymile counsel’s statement during the conference call that other

witnesses would be called to testify about the practice of “fishing.”  Counsel

for Twentymile also argues that the inspectors may be able to offer information

relevant to issues surrounding the high negligence and unwarrantable failure

determinations set forth in the citation.  I find that testimony concerning

“fishing” and the inspector’s negligence and unwarrantable failure determinations

“can better be obtained directly from individuals who have first-hand knowledge

of those matters and who undoubtedly occupy positions of responsibility in the operator's

own organization.”  Martin Marietta Aggregates , 20 FMSHRC 1239, 1240

(Oct. 1998) (ALJ) (Order quashing subpoena of MSHA special investigator in

training).

It is important to note that in

issuing the unwarrantable failure citation and imminent danger order, MSHA

Inspector Rufus Taylor relied upon specific conditions that he observed at the

time of his inspection.  Even assuming that the two subpoenaed MSHA inspectors

engaged in or had knowledge of “fishing” when they worked at the Foidel Creek

Mine, they have no knowledge of the specific conditions that Inspector Taylor relied

upon when issuing the citation and the imminent danger order. 

It is quite apparent that

Twentymile only seeks the testimony of these individuals because they are

presently MSHA inspectors.  If these same individuals had left the mine to

start a business together, for example, Twentymile would not be seeking their

testimony.  Twentymile is also not seeking to call them as expert witnesses. 

Requiring these individuals to testify would take them away from the important

work they do as inspectors and would be of no value to the court given that the

same facts can be obtained from other witnesses . 

For the reasons discussed above, the

Secretary’s motion is GRANTED and the subpoenas issued on January 8,

2018 for the hearing testimonies of Tracy Santistevan and Robert Teeter are QUASHED.

/s/

Richard W. Manning

Richard

W. Manning

Administrative

Law Judge

Distribution:

Kristi

Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer

Blvd., Suite 515, Denver, CO 80204

Christopher

G. Peterson, Esq., and Benjamin Ross, Esq., Jackson Kelly PLLC, 1099 18th

Street, Suite 2150, Denver, CO 80202-1958