FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

June 15, 2012

ORDER REQUESTING INFORMATION

AND

RULINGS ON MOTIONS TO COMPEL

            This civil penalty proceeding arises under section 105 of the Mine Act. 30 U.S.C. §815. The case is scheduled to be heard in Morgantown, West Virginia beginning on Tuesday, August 7, 2012 at 8:30 a.m. At issue are one section 104(d)(2) (30 U.S.C. §814(d)(2)) order of withdrawal and four section 104(a) citations. 30 U.S.C. §814(a). The order and one of the citations allege that Consolidation Coal Company (“Consol”) violated mandatory safety standard 30 C.F.R. §75.202(a) at its Blacksville No. 2 Mine [ ], while three of the citations allege that Consol violated §75.220(a)(1) at the mine. In addition to alleging a violation of section 75.202(a), the order and one of the citations charge that the alleged violations were a significant and substantial contribution to a mine safety hazard (“S&S”). The order also charges that the violation was caused by Consol’s unwarrantable failure to comply with the standard. In addition to alleging a violation of section 75.220(a)(1), one of the other citations alleges that the violation was S&S. The Secretary seeks a total civil penalty of $67,200.00 for the alleged violations. Pending before the Court are several matters relating to the proposed penalties and to discovery disputes.

I. THE PROPOSED PENALTIES

            It is not clear to the Court how the Secretary arrived at the proposed penalties. Although paragraph 5 of her petition purports to explain the Secretary’s calculations, the Court finds it difficult, if not impossible, to comprehend what the Secretary has done. For example, although the petition asks its reader to “See MSHA Form 1000-179 in Exhibit A for a detailed summary of point computations,” there is no form that is identified as Form 1000-179 in the copy of Exhibit A the Secretary filed with the Commission. Further, although paragraph 5 refers to “[C]itations/orders assessed pursuant to 30 C.F.R. §100.5, which are indicated as ‘Special Assessment’ in Exhibit A,” there is no indication in the exhibit that any assessment is a “special assessment.”

            Before the case can be tried the Court needs to understand how the Secretary determined the penalties she proposed. Accordingly, within 15 days of the date of this order, the Court requests the Secretary file a narrative explanation of how each proposed penalty was calculated, including the part each of the statutory civil penalty criteria played in the calculation. The Court is especially interested to know why the Secretary determined the alleged violation of section 75.202(a) set forth in the order warrants a proposed penalty of $50,700. In short, the Court needs to be “walked through” the Secretary’s proposed assessment process.

II.

DISCOVERY MATTERS

            The Court is in receipt of Consol’s Motion to Compel Discovery. In the motion Cosol states that although the Secretary requests that “specially assessed penalties be levied against Consol with respect to each alleged violation” – something that as noted is not apparent to the Court from the present record – the Secretary’s petition “offers no substantive basis for its decision to propose a specially assessed penalty with respect to each citation in the docket.” Consol Mot. at 2, 3. The motion goes on to state that on April 20, 2012 Consol through a discovery request sought certain information related to the specially assessed penalties, including but not limited to the Special Assessment Review Forms (“SAR Forms” or MSHA Forms 7000-32) and that the Secretary responded by withholding the information because she claims it is protected by the deliberative process privilege.

            Consol also states that while the Secretary produced some documents regarding her special assessment procedures, these documents “offered no substantive basis with respect to each specially assessed penalty.” Id. Consol Mot. at 4. Consol further states that the Secretary “declined to identify and provide data regarding how many citations and orders alleging violations of Sections 75.202 and 75.202(a)(1) have been specially assessed, both nationwide and in [MSHA] District 3, since the inception of the “Rules to Live By [I]nitiative” (the “Initiative”). Id.

            Consol argues that documents related to the specially assessed penalties are relevant in that the Secretary has requested the court to impose such penalties. Because the SAR Forms contain facts that MSHA relied upon to support its specially assessed penalties, Consol asserts it is entitled to the forms. Consol Mot. at 5. Moreover, according to Consol, even if the forms were once protected by the deliberative process privilege, they lost the protection once the recommendations they contain were adopted by the Secretary as the agency’s position. Consol Mot. at 6-7.

            Consol also argues that it is entitled to data concerning all of the citations and orders alleging violations of sections 75.202 and 75.220(a)(1) that have been specially assessed in order to determine whether the Initiative is a binding norm and therefore a substantive rule requiring notice-and-comment rulemaking to be valid. Although the Secretary objects that this request is irrelevant and burdensome, Consol maintains that it is correctly attempting to prove that the Initiative is a substantive rule and therefore was improperly implemented. Consol Mot. at 9-10.

            The Secretary responded to Consol’s motion by filing her own motion to compel. She wants Consol to answer supplemental interrogatories and to supply documents requested by her on May 11, 2012. She asserts that Consol’s responses were due on June 8, but that Consol’s counsel stated that he “[was] not inclined to answer any supplemental discovery responses until [Consol’s] Motion to Compel has been ruled on.” Sec’s Mot. at 2. The Secretary asserts that there is no relation between the two motions and seeks a ruling that Consol be compelled to answer as required by the Commission’s rules. Id.

            The Court has little patience with this kind of tit for tat. It agrees with the Secretary that the matters are not related and orders Consol to respond to the Secretary’s Supplemental Interrogatories/Documents Requests within 15 days of the date of this Order.

            As for the SAR forms, if the alleged violations are proven, the Court must assess civil penalties de novo based on its consideration of the six penalty criteria set forth in section 110(I) of the Act. Sellersburg Stone Co., 5 FMSHRC 287. 292 ) (March 1982). Therefore, the Court would view the SAR forms as irrelevant to the issues at hand except for the fact that if the Court assesses a penalty that “substantially diverges” from that which is proposed by the Secretary, the Commission requires the Court to explain the variance. Hubb Corporation, 22 FMSHRC 606, 612 (May 2000) (quoting Sellersburg, 5 FMSRHC at 293). The Court can hardly do so if it does not understand the basis for the Secretary’s proposal. Likewise, Consol can hardly show a variance is warranted without knowing the basis. The Court recognizes, however, that there may indeed be valid deliberative process concerns that arise when viewing the forms. For example, they may contain comments by MSHA personnel concerning the pros and cons of issuing a special assessment. Like other judges who have considered the matter (see e.g., Big Ridge Inc. at 2), the Court orders the Secretary to submit the SAR forms sought by Consol to the Court for its in camera review. The forms must be submitted within 15 days of the date of this order. The Court will rule as to those parts of the forms which are protected by privilege. The Secretary will then be directed to redact such parts and to send the redacted copies to Consol.

            The Court is not disposed to entertain any issues pertaining to whether the Initiative is a substantive rule requiring notice and comment rulemaking. The Court views such questions as far outside the bounds of what is essentially a garden variety civil penalty proceeding, albeit with at least one unusually high proposed penalty. Therefore, the Court denies Consol’s motion to compel production by the Secretary of data respecting the number of alleged violations of section 75.202 and 75.202(a)(1) that were specially assessed both nationally and in MSHA District 3 since implementation of the Initiative.

                                                            /s/ David F. Barbour

                                                            David Barbour 

                                                            Administrative Law Judge

Distribution: (1^st Class U.S. Mail)

Bryan C. Shieh, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106

Patrick W. Dennison, Esq.; R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 152222

/sa