FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

March 12, 2013

ORDER GRANTING MOTION TO DISCONTINUE

SIMPLIFIED PROCEEDINGS

NOTICE OF HEARING

RULES FOR HEARING

AND

ORDER DENYING ALL PENDING MOTIONS AND REQUESTS

             The Court is in receipt of two motions, one objection and a disclosure, all of which are included in a single submission (“Mot.”) filed by Cactus Canyon Quarries of Texas, Inc. (“Cactus Canyon”). Mot. 1. The submission seeks a number of things, among which are requests to discontinue Simplified Proceedings, to compel full disclosure and to answer “quashed” discovery. In addition, in the submission Cactus Canyon objects to “deficiencies” in disclosures the Secretary already has made. Id. In response the Secretary states that the company’s claims are unfounded and that the Secretary is opposed to discontinuing Simplified Proceedings. Ans. 1-2.

            Before ruling on the company’s motions and requests, it is helpful to review the nature of the case and the reason it was designated for Simplified Proceedings. The case is a civil penalty proceeding arising under sections 105 and 110 of the Mine Act. 30 U.S.C. §§815, 820. The Secretary petitions for the assessment of civil penalties of $100 each for two alleged violations of mandatory safety standard 30 C.F.R. 56.14107(a), the standard requiring moving machine parts to be guarded. The Secretary asserts that on August 8, 2012 at the company’s Fairland Plant & Quarry, Mac Burris, an inspector for the Secretary’s Mine Safety and Health Administration (“MSHA”), found that the primary belt self cleaning tail pulley was not guarded to protect belt cleaners and maintenance workers from the moving parts of the tail roller. Citation No. 8625213. She also asserts that the alleged violation was unlikely to permanently disable one miner, that the alleged violation was not a significant and substantial contribution to a mine safety hazard (“S&S violation”) and that the alleged violation was due to the company’s moderate negligence. The Secretary further charges that on the same day, the same inspector found that the secondary belt tail pulley was inadequately guarded in violation of section 56.14107(a). Citation No.8624214. When issuing the citation for the allegedly inadequate guard on the secondary belt tail pulley, Inspector Burris made findings essentially identical to those he made for Citation No. 8634213. The inspector kept notes regarding his observations. In addition, photographs of each alleged violative condition were taken.

            The Secretary’s proposed civil penalty of $100 for each violation is the minimum penalty the Secretary can propose under the Secretary’s penalty regulations. See 30 C.F.R. §§100.3(f); 100.3(g). The company answered the Secretary’s penalty petition by challenging the application of the standard to the cited conditions and by contesting the accuracy of the calculations leading to the proposed penalties. The company also served discovery on the Secretary.

            After the company answered, the matter was assigned to the Court, and the Secretary’s representative moved to designate the case for Simplified Proceedings pursuant to Commission Rule 101. 29 C.F.R. §2700.101. The company opposed the designation asserting the representative of the Secretary was trying to avoid discovery. The company also moved to compel the Secretary to answer its previously filed discover. The representative of the Secretary responded that he was not attempting to limit the company’s ability to obtain information but that because the case “fit all the requirements of Simplified Proceedings” such a designation would “expedite the exchange of information and limit the scope of a hearing.” Sec’s Answer to Mot. 1. The Court agreed with the Secretary, and on January 8, 2013 the Court designated the case for Simplified Proceedings. Order 1. The Court directed counsel for Cactus Canyon and the representative of the Secretary to “exchange copies of all documentary information in their possession that support their claims.” Id., citing 29 C.F.R. §2700.105(a). The Court further advised the parties that given the fact it had designated the case as a Simplified Proceeding, “discovery other than the documents exchanged by the parties will not be allowed except on the Court’s order.” Id. 2.

            On February 26, 2013 the Court received counsel for Cactus Canyon’s submission, and on February 27 it received the representative of the Secretary’s objections. On March 4, 2013, the Court received an additional filing from counsel for Cactus Canyon titled Response to Secretary’s . . . Mis-Statements” in which counsel detailed “misleading statements” made by the representative of the Secretary and in which counsel renewed his motion for the Court to discontinue Simplified Proceedings and to order the representative to respond to Cactus Canyon’s discovery. Resp 2.

RULING

            It is clear to the Court that counsel’s motion to discontinue Simplified Proceedings should be granted. The rules governing Simplified Proceedings were promulgated to help parties fully understand one another’s litigation position so they could more easily settle their differences or, failing a settlement, so they could participate in a streamlined, inexpensive trial. For Simplified Proceedings to further these goals, the parties must be willing participants in the process. Where, as here, one party objects and seeks to go beyond the procedures contemplated by the rules – for example by insisting on more discovery than the rules provide – the likelihood of a speedy resolution of the case is diminished to the point where adherence to the rules becomes a hindrance rather than a benefit. For this reason, counsel for Cactus Canyon’s motion IS GRANTED and Simplified Proceedings ARE DISCONTINUED .

             The parties are advised that discontinuation of Simplified Proceedings does NOT mean that the case may proceed without limitations on trial preparations and on the trial itself. There may be past instances when in a case such as this, parties were allowed to proceed to hearing without such limitations, but at least as far as the Court is concerned, those days are over. The fact is that not enough is involved in some cases to allow parties to fish for every piece of possible evidence no matter how tangential to the issues. Moreover, the Commission has recognized that the right to a due process hearing does not include the right to unrestricted discovery and testimony. Indeed, the Commission noted this when the Simplified Proceedings rules were promulgated. Rule 104(c) provides, “If Simplified Proceedings are discontinued, the Judge may issues such orders as are necessary for an orderly continuation under conventional rules.” And Rule 104(c) harkens back to Commission Rule 56 (29 C.F.R. §2700.56), which allows a judge on his own motion to “limit discovery to prevent undue delay or to protect a party or person from oppression or undue burden or expense.”

            The Court again notes the minimal nature of this case – two alleged violations of a single standard bearing virtually identical findings and for which minimal penalties are proposed. It also notes that the issues are primarily factual – did the alleged violations exist and, if so, are the inspector’s gravity and negligence findings appropriate. The Court is hard pressed to imagine a case involving less complicated issues, unless it is a case in which one such violation is alleged. The Court further observes that because a settlement appears unlikely, a hearing may be necessary, but that the nature of the case warrants a streamlined and inexpensive hearing.

            Therefore, the Court advises the parties that the case will be called for hearing on April 30, 2013 in Austin, Texas, commencing at 8:30 a.m. The following rules will apply: Each party will be allowed to present no more than two witnesses on direct examination, unless a party can show cause why more than two are required; each party will be allotted no more than three hours to offer the direct testimony of its witnesses, and each party will be allowed no more than 45 minutes to cross examine a witness; if a witness is called in rebuttal, the witness’s direct testimony will be limited to 20 minutes and cross examination of the witness will be limited to 10 minutes; neither parties may call an expert witness; no depositions or interrogatories are allowed without good cause shown, and outstanding requests for depositions need not be answered nor need presently served interrogatories be answered; by April 5, 2013 the parties shall exchange the names and titles of the witnesses they intend to call[ ] as well as all documentary evidence they intend to offer; by April 5, 2013 copies of witnesses names and copies of all documentary evidence the parties intend to offer shall also be provided to the Court; the failure to identify a witness to the opposing party and to the Court by April 5 (or by April 19 as applicable) and the failure to provide a copy of a document to the opposing party and to the Court by April 5, 2013 means that the proposed witness may not be allowed to testify and the subject document(s) may not be entered into evidence.

            The specific hearing site will be provided to the parties at a later date. Any person planning on attending the hearing who requires special accessibility features and/or any auxiliary aids (such as sign language interpreters) must request such features and/ or aids sufficiently in advance of the hearing to allow accommodation, subject to the limitations set forth in 29 C.F.R. §§ 2706.150(a), 2706.160(d).

             Except for the counsel for Cactus Canyon’s motion to discontinue Simplified Proceedings, all other pending motions and requests ARE DENIED.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

(202) 434-9953

Distribution: (Certified Mail)

William O’Dell, CLR, U. S. Department of Labor, Office of the Solicitor, 1100 Commerce Street, Room 462, Dallas, TX 75242

Andy Carson, 7232 Co. Road 120, Marble Falls, TX 78654

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