Secretary of Labor v. Original Sixteen to One Mine, Inc. (ALJ decision, February 22, 2018)

Plain-English summary

In three simplified civil-penalty cases, MSHA's conference and litigation representative asked the mine for policies, training records, inspection requests, weighing records, storage information, and purchasing records tied to five citations. Judge William B. Moran held that the requests went beyond the automatic disclosure rule and constituted discovery, which simplified proceedings do not permit unless the Judge orders it. The order did not compel the mine to answer those requests as framed. The Judge nevertheless warned both sides that evidence intended for use at the hearing had to be exchanged by the prehearing deadline and that late-document leniency previously given to the mine would not continue. Both parties were ordered to acknowledge receipt and their understanding of the consequences of withholding intended evidence.

Decision snapshot

• Cited authority: 29 C.F.R. §§ 2700.105 and 2700.107
• Outcome: The requested information was treated as discovery rather than mandatory disclosure, while both parties were ordered to timely exchange evidence they intended to use.
• Key point: Simplified proceedings require disclosure of supporting evidence but do not authorize broader discovery requests without an order from the Judge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

Phone: (202) 434-9933
| Fax: (202) 434-9949

February 22, 2018

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE SAFETY
AND HEALTH                      :

ADMINISTRATION
(MSHA),                        :     Docket No. WEST 2017-0546

Petitioner,                          :     A.C. No. 04-01299-437883

v.                                                   :    

: Docket No. WEST 2017-0685

ORIGINAL
SIXTEEN TO ONE MINE INC,   :     A.C. No. 04-01299-445257

Respondent.                      :

:     Docket No. WEST 2018-0100

:     A.C. No. 04-01299-450097

:    

:     Mine: Sixteen to One Mine

:

ORDER

Before: Judge
Moran

These
consolidated cases are before the Court upon petitions for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. [1] On January 29, 2017 the parties informed the Court of a dispute that has arisen during the discovery process.

On
that date, the Conference and Litigation Representative, (“CLR”), Mr. Randy Cardwell, [2] sent an email to the Court informing that he “requested the following information from Mr. Miller, per the Prehearing Orders as described under § 2700.105 Disclosure of Information by the Parties:

Citation No. 8785581: Please
provide the Respondents policies and procedures regarding the use of self-rescuers, and any training documentation, which would indicate that miners were trained in the use of self-rescuers.

Citation No. 8785582: Please
provide any information the Respondent may have regarding any requests made to have the Speedair air compressor inspected.

In looking at the termination for
the Speedair air compressor, the compressor was removed from the mine site, was there a reason as to why the Respondent chose to remove the compressor? Instead of having it inspected.

Citation No. 8879879: Please
provide any records which would show when the W65 Self- Rescuer unit EN8047 was weighed, dating back to when it was assigned.

Citation No. 8879886: Please
provide any information which would indicate how the inside of the magazine was kept suitably dry.

Citation No. 8879887: Please
provide any information indicating when the Cobra blasting caps and the Dyno Nobel Nonel shock tube detonators were purchased and delivered to the mine site.

Cardwell email to the Court
January 29, 2018

Each
of these dockets has been designated for Simplified Proceedings. The provision cited by the CLR, § 2700.105, titled, “Disclosure of information by the Parties,” provides, in relevant part,

(a) Within 45 calendar days after
a case has been designated for Simplified Proceedings, the parties shall provide any information in a party's possession, custody, or control that the disclosing party or opposing party may use to support its claims or defenses . Any material or object that cannot be copied, or the copying of which would be unduly burdensome, shall be described and its location specified. Materials required to be disclosed include, but are not limited to, inspection notes from the entire subject inspection, rebuttal forms, citation documentation, narratives, photos, diagrams, preshift and onshift reports, training documents, mine maps, witness statements (subject to the provisions of

§ 2700.61), witness lists, and
written opinions of expert witnesses, if any.

29 C.F.R. § 2700.105 (emphasis added).

The
Court, noting that, per 29 C.F.R. 2700.107, discovery is not permitted except as ordered by the administrative law judge, finds that the information sought by the CLR constitutes discovery. [3]

That said, the Court advises the
Respondent that the determination in this Order comes with an important caveat . Through experience in other hearings, the Respondent is well aware of the importance of each side disclosing information intended to be used at the hearing. In the past, with this Respondent, the Court has been lenient in permitting the Respondent to submit documents in its defense at, or very near to, the commencement of the hearing. However, it will not allow that practice to continue to occur. Therefore, it is in the Respondent’s interest to disclose any such information per the prehearing exchange date. Of course, this applies to both sides. As the Court has informed the Respondent on other occasions, modern litigation avoids such late disclosure of information in order to prevent surprise. The idea is that both sides put their cards “face up” so to speak, in order to provide for a fairer and more accurate determination of the issues in dispute. Both sides are hereby ORDERED to respond to the Court acknowledging receipt of this Order and to their understanding of the consequences of failing to provide to one another information intended for their respective petition or defense.

SO ORDERED .

/s/ William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Isabella M. Finneman,
Esq., U.S. Department of Labor, 90 Seventh Street, Suite 3-800, San Francisco, CA 94103

Randy Cardwell, CLR, U.S.
Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687

Michael Miller,
Original Sixteen to One Mine Inc., P.O. Box 909, Alleghany, CA 95910

/KP

[1] These matters
are currently set to be heard commencing April 17, 2017 in Nevada City, California. All three dockets have been designated for simplified proceedings pursuant to      30 C.F.R. § 2700.102.

[2] It is the
Court’s understanding that Attorney Isabella M. Finneman has or will file a notice of appearance for these dockets, as the CLR has not sought the Court’s permission to practice regarding these dockets, per 29 C.F.R. §2700.3(b)(4). The Court construes the CLR’s informal request as seeking factual information from the Respondent.

[3] For example,
the CLR’s request for any information the Respondent may have regarding any requests made to have the Speedair air compressor inspected will only come into play if the Respondent is asserting this as a defense or in mitigation. Several of the requests, such as the information how the magazine was kept suitably dry, may simply be addressed through the Secretary’s cross-examination, if such matters come up. The Respondent (and the Secretary) are again advised to pay attention to the caveat in this Order.