FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue NW, Suite 520N

Washington, D.C. 20004

March 13, 2013

ORDER DENYING MOTIONS FOR SUMMARY DECISION

Before:            Judge Feldman 

            These matters are before me based on petitions for assessment of civil penalty filed pursuant to sections 105(d) and 110(c) of the Federal Mine Safety and Health Act of 1977 (“the Act”). 30 U.S.C. § 815(d), § 820(c). The captioned proceedings are currently scheduled for hearing on Tuesday, April 9, 2013.

            I. Statement of the Case

            The Secretary of Labor (“the Secretary”) and Highland Mining Company (“Highland”) submitted joint motions for partial settlement of Docket Nos. KENT 2008-619 and 2009-168 on August 21, 2012. The two alleged violations remaining in dispute are Citation No. 6692995 in Docket No. KENT 2008-619, and Order No. 8489217 in Docket No. KENT 2009-168.

            Citation No. 6692995, issued during an inspection on August 21, 2007, alleges that four cable bolts used to supplement roof control had been cut away with a compressed gas torch to allow passage of a Flexible Conveyor Train. The Secretary alleges that this condition violated section 75.202(a), which requires maintaining structural protection against roof falls, consistent with section 75.213(f), which prohibits removal of permanent roof support where there are indications of structural weakness. As a result of facts which came to light during a subsequent 110(c) investigation, Order No. 8489217 was issued on August 28, 2008. The order alleges

that Highland violated section 75.213(c)(2) by not installing temporary supports prior to the removal of the four cable bolts.

            Docket Nos. KENT 2009-850 and 2009-851 involve petitions for assessment of civil penalty issued pursuant to section 110(c) of the Act, seeking to impose personal liability for the two alleged violations above against Steve Bockhorn, shift mine foreman at Highland 9 Mine. In Docket No. KENT 2009-811, the Secretary seeks to impose personal liability for the two alleged violations against section foreman Mark Sheffield.

            Section 110(c) states:

Whenever a corporate operator violates a mandatory health or safety standard . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same

                        civil penalties . . .

30 U.S.C. § 820(c). An individual is subject to personal liability under section 110(c) if he is “in a position to protect employee safety and health [and] fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.” Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).

            These matters were previously stayed on February 10, 2011, pending the Commission’s decision in Bill Simola, 32 FMSHRC 539 (Mar. 2012), regarding the applicability of section 110(c) to agents of Limited Liability Corporations (“LLCs”). The Commission has now affirmed that agents of an LLC can be held personally liable for violations committed by the operator. Id.

            Bockhorn, Sheffield and Highland have each filed a Motion for Summary Decision. Disposition by summary decision is appropriate provided (1) the entire record establishes that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). Sheffield has also filed

a Motion in Limine.

            II. Motion for Summary Decision submitted by Bockhorn

            On January 25, 2011, Bockhorn filed a Motion for Summary Decision on grounds that, as an agent of an LLC rather than of a corporate operator, he was not subject to personal liability under section 110(c). As noted above, the Commission has since determined that section 110(c) applies to agents of an LLC. Simola, 32 FMSHRC 539. Therefore, the motion must be denied.

            III. Motion for Summary Decision submitted by Sheffield

            In a Motion for Summary Decision filed on January 12, 2011, Sheffield asserts that the Secretary failed to meet her burden of proof regarding Sheffield’s involvement in the cutting of the roof bolts, his knowledge of the alleged hazardous roof conditions underlying the section 110(c) charges, or his ability to act on his alleged knowledge of those conditions.

            Liability under section 110(c) applies where an agent knowingly authorizes, orders or carries out a violation. 30 U.S.C. § 820(c). Sheffield contends that deposition testimony from the Secretary’s two witnesses, the issuing inspector and special investigator, does not demonstrate that Sheffield authorized, ordered or carried out the cutting of the roof bolts, because it does not establish his direct involvement. Sheffield Mot., at 7.

            Liability can also be found where an individual in a position to protect employee health and safety fails to act on the basis of information that gives him knowledge or reason to know of a violative condition. Kenny Richardson, supra, 3 FMSHRC at 16. Section 75.213(f) prohibits removal of structural support where there are indications that the roof is structurally weak. Sheffield relies on the testimony of the special investigator to establish as undisputed Sheffield’s lack of direct knowledge of any structural roof problems at the time the bolts were removed. Sheffield Mot., at 8. Relying on deposition testimony from shift foreman Bockhorn, Sheffield also characterizes as undisputed the fact that Sheffield was not in a position to protect employee health and safety. He contends that Bockhorn made the decision to cut the bolts, and because Bockhorn was his immediate supervisor, Sheffield was not in a position to overrule that decision. Sheffield Mot., at 9.

            Deposition testimony alone, in the absence of direct and cross-examination at trial, does not resolve questions of disputed material facts. However, even if Sheffield’s lack of direct involvement or actual knowledge is accepted, summary judgement is inappropriate. There remain material questions of fact concerning whether there was a structural weakness of which Sheffield, as shift foreman, should have had knowledge. As for Sheffield’s ability to act on that information, the presence of an immediate supervisor does not automatically absolve other management personnel from their responsibility to act on information regarding potential hazards. Consequently, Sheffield’s motion must be denied, as genuine issues of material fact regarding his potential failure to act remain unresolved.

            IV. Motion for Summary Decision submitted by Highland

            On February 23, 2011, Highland submitted a Motion for Summary Decision seeking to vacate Order No. 8489217. Highland contends that the order was not issued with reasonable promptness, as it was issued approximately one year after the alleged violative condition at issue. Highland’s Mot., at 2. Highland relies on section 104(a) of the Act, which provides:

If, upon inspection or investigation, the Secretary . . . believes that an operator of a coal or other mine subject to this chapter has violated this chapter, or any mandatory health or safety standard, rule, order or regulation promulgated pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the operator. . . . The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this chapter.

30 U.S.C. § 814(a). In a response filed on January 24, 2013, the Secretary asserts that the intervening section 110(c) investigation constitutes a legitimate reason for delay. Sec’ Resp. to Higland’s Mot., at 15-16.

            As a threshold matter, although citations should be issued in a timely manner, promptness in issuing a citation is not a jurisdictional prerequisite for enforcement. 30 U.S.C. § 814(a). See also Sec’y v. Twenty Mile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005), cited in Alex Energy Inc., 29 FMSHRC 1098 (Nov. 2007) (finding that processing guidelines are intended to “spur the Secretary to action” rather than function as a jurisdictional limit); Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d 750 F.2d 1093 (D.C. Cir. 1984) (holding that filing periods are not considered jurisdictional).

            Moreover, the Commission has recognized that an investigation subsequent to an inspection may justify a delay in issuing a citation. See, e.g., Nacco Mining Co., 8 FMSHRC 59, 64 (Jan. 1986) (noting there may be times when a citation will be delayed because of a protracted accident investigation or for other legitimate reasons) (citing Senate Report No. 95–181, 95th Cong., 1st Sess., 30). Finally, the Secretary contends that even if the delay was unreasonable, Highland suffered no prejudice, because the issuance of related Citation No. 6692995 and Highland’s early involvement in the section 110(c) investigation provided Highland with sufficient notice. Sec’s Resp., at 17-18.

            Highland also contends that the order should be vacated because it was not based on the inspector’s personal observations at the time of his inspection. Highland relies on deposition testimony that the inspector issued the order because he was instructed to do so by another party at MSHA after the section 110(c) investigation. Highland’s Mot. for Summary Decision, at 5-6. However, the Commission has held that section 104(d) sanctions are not restricted to occasions where an inspector personally observes an existing violation. See, e.g. Nacco Mining Co., 9 FMSHRC 1541 (Sept. 1987); Emerald Mines Corp., 9 FMSHRC 1590, 1594 (Sept. 1987); Southern Ohio Coal Co., 13 FMSHRC 912 (Jun. 1991). Rather, section 104(d) should be interpreted to allow an inspector to make a determination “based upon whatever process of discovery or examination may be appropriate.” Nacco, 9 FMSHRC at 1550. Section 110(c) investigation findings provide an adequate basis for the issuance of citations and orders alleging violations of mandatory safety standards.

            Accordingly, Highland’s Motion for Summary Decision challenging the validity of Order No. 8489217, on grounds that it was not issued with reasonable promptness and was not based on the issuing inspector’s personal observations, must be denied.

            V. Motion in Limine submitted by Sheffield

            On January 18, 2011, Sheffield submitted a Motion in Limine requesting that the court preclude from the pending section 110(c) matter any reference to Order No. 8489217. Sheffield relies in large part on the same contention put forward by Highland, that the order is invalid because it was not based on the issuing inspector’s personal observations. Mot. in Limine, at 4. This contention fails for the same reasons discussed above. See Nacco, supra, 9 FMSHRC 1541.

            Sheffield also argues that “the existence of [the] Order is irrelevant to the charges,” because “it is undisputed that the Section 110(c) charges pending against the Respondents arise out of the Citation, not the Order.” Mot. in Limine, at 4. However, as the Secretary’s petition seeks to impose personal liability for Sheffield’s alleged involvement in the condition cited in Order No. 8489217, it is difficult to view as undisputed Sheffield’s claim that the conditions cited in the order did not give rise to the pending 110(c) charges. Consequently, the motion must be denied.

ORDER

            For the reasons discussed above, the Motions for Summary Decision filed by the Respondents and the Motion in Limine filed by Sheffield ARE DENIED.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Regular & Certified Mail)

Neil A. Morholt, Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219

Michael T. Cimino, Esq., Jackson Kelly PLLC, 1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322

K. Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Lexington, KY 40507

Rebecca J. Oblak, Esq., Bowles Rice McDavid Graff & Love LLP, 7000 Hampton Center,

Suite K, Morgantown, WV 26505

Melanie J. Kilpatrick, Esq., Rajkovich Williams Kilpatrick & True PLLC, Suite No. 375,

3151 Beaumont Centre Circle, Lexington, KY 40513

/tmw