FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

April 4, 2012

ORDER DENYING

RESPONDENT’S MOTION TO COMPEL

            This proceeding has been brought pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (“the Act”). The proceeding concerns Citation Nos. 7260671 and 7260672 that allege violations of 30 C.F.R. § 75.403 for Pocahontas Coal Company, LLC’s (“Pocahontas’”) alleged failure to maintain the required percentage of rock dust in the 007 and 003 mechanized mining units (“MMU’s”). Citation Nos. 7260671 and 7260672 were specially assessed by the Secretary at $14,700.00 each, for a total proposed penalty of $29,400.00. Pocahontas has filed a motion to compel the production of the Secretary’s special assessment review forms concerning Citation Nos. 7260671 and 7260672 that serve as the basis for the proposed $29,400.00 total civil penalty.

            Pocahontas asserts that the special assessment forms are relevant and discoverable. Resp. Mot. at 3. Pocahontas states that it does not possess the information contained in the forms, and that such information is “necessary to effectively defend this case and to carry on a dialogue regarding potential settlement.” Id. Pocahontas relies on Commission Rule 56(b), 29 C.F.R. § 2700.56(b), and Rule 26(b)(1) of the Federal Rules of Civil Procedure that provide that all relevant material not privileged is subject to discovery. Id. Pocahontas additionally addresses why the deliberative process privilege should not apply. Id. at 4.

            The Secretary also relies on Commission Rule 56(b), and Rule 26(b)(1) of the Fed. R. Civ. P., but emphasizes that only relevant material not privileged is subject to discovery. Sec’y Resp. at 2. (Emphasis added). The Secretary, however, asserts special assessment review forms are not relevant. Id. In this regard, the Secretary notes that under section 110(i) of the Act “[t]he Commission shall have authority to assess all civil penalties provided in this Act.” Id. at 3 citing 30 U.S.C. § 820(i). The Secretary also references Douglas R Rushford Trucking, 22 FMSHRC 598, 600 (May 2000), for the proposition that the Commission and its Administrative Law Judges make penalty determinations de novo. Sec’y Resp. at 3. Notwithstanding the relevance issue, the Secretary also addresses why the deliberative process privilege should apply. Id.

            As noted by the Secretary, it is well settled that the Commission and its judges have the authority to determine and assess the appropriate civil penalty in contested civil penalty matters. The Commission has outlined the parameters of its responsibility for assessing civil penalties:

The principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violations, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

Rushford Trucking 22 FMSHRC at 600 citing 30 U.S.C. § 820(i).

            The Secretary bears the burden of proving each element of a cited violation. The Commission has held that findings of fact on the statutory penalty criteria must be made by its judges based on the evidence presented during a hearing proceeding. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294, Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo assessment of civil penalties does not require “that equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

            As noted, discovery may be obtained if the information or documentation sought is relevant in that it is admissible evidence, or, the information appears likely to lead to the discovery of admissible evidence. Commission Rule 56(b). As the Secretary’s special assessment criteria, as vague as it may be, is not relevant given the de novo authority of the Commission to assess civil penalties, the special assessment review forms sought by Pocahontas are not discoverable. Consequently, Pocahontas’ motion to compel IS DENIED. Given the non-relevant nature of the information sought to be compelled, I need not address whether the special assessment forms are protected by the deliberative process or otherwise privileged.

            I note however that information concerning the personal observations of the issuing MSHA inspector, i.e., the inspector’s actual knowledge, which may have served as the basis for the special assessment, is discoverable. Such information can be obtained through depositions.

This captioned proceeding remains scheduled for hearing on the merits at 9:00 a.m., on Tuesday, May 15, 2012, in the vicinity of Beckley, West Virginia. The hearing location will be specified in a subsequent order. 

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge 

Distribution:

Amanda K. Slater, Esq., U.S. Department of Labor, Office of the Solicitor,

1999 Broadway, Suite 800, Denver, CO 80202-5708

Maxwell K. Multer, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Blvd.,

Morgantown, WV 26501

/jel