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

July 6, 2012

RECOGNITION OF COMPLIANCE

AND

ORDER TO PRODUCE FORMS

            On June 15, 2012 the Court ruled on several issues pertaining to the penalties proposed herein by the Secretary. Among other things, the Court requested that the Secretary explain to the Court the bases for the penalties. The Court’s request was necessitated by the fact that it could not determine from the Secretary’s petition and attachments how she arrived at the dollar amounts she proposed. This was especially true with regard to the alleged violation of section 75.202(a) set forth in Order No. 8025378 for which the Secretary proposed a civil penalty of $50,700. Order 2. In addition, in response to the company’s motion to compel the Secretary to produce the Special Assessment Review Forms (SAR Forms) for the alleged violations, the Court recognized the possibility that the forms or parts thereof could be privileged as claimed by the Secretary, and it ordered the Secretary to submit the forms for its en camera review. The Court stated that after reviewing the forms it would rule whether the forms in whole or in part are protected. If it found parts of the forms to be privileged, the Court further stated that it would order the Secretary to redact the forms and send redacted copies to the company. Order 4-5.

            The Secretary has complied with both parts of the Court’s order. As a result, the Court holds as follows:

I.

THE PROPOSED PENALTIES

            As explained in the June 15 order, the Court is mystified as to why Exhibit A of the Secretary’s petition failed to indicate the proposed penalties were specially assessed. As a result the Court, and the Court assumes the company, was left to guess how the proposed penalties were computed. The materials submitted by the Secretary in response to the Court’s order explain the way in which the Secretary reached the penalty amounts she proposed, and in this regard the Special Assessment Narrative Forms are especially helpful. Narrative Explanation of the Special Assessment Process, Exh. B. Given the Secretary’s response, the Court finds that the Secretary’s submission has remedied her original omission.

II.

THE SAR FORMS

            The question remains as to why the Secretary chose to specially assess the alleged violations. As the Court understands it, this question is answered in part through the SAR Forms wherein the issuing inspector, the inspector’s supervisor, his assistant district manager and his district manager recommend to MSHA whether or not to proceed with a special assessment. This procedure is in line with the Secretary’s determination that the violation of certain standards be considered for special assessment to “improve the prevention of fatalities in mining” through “enhanced enforcement . . . focus[ing] on [various specified] frequently cited standards . . . that cause or contribute to fatal accidents in the mining industry.” Fatal Prevention - Rules to Live By, Http://www.msha.gov/focuson/RulestoLiveBy/RulestoLiveByI.asp. It is not the province of the Court to second guess the Secretary’s enforcement priorities. The Secretary’s regulations clearly provide that “MSHA may elect to waive the regular assessment under [30 C.F.R.] § 100.3 if it determines that conditions warrant a special assessment.” 30 C.F.R. § 100.5. Certainly, the Secretary’s use of enhanced penalties to spur compliance with what she deems critically important standards comes within the discretion allowed her by section 100.5.

            It is, however, the province of the Court to assess civil penalties for any proven violations and the court must explain any significant departures from the penalties proposed. Hubb Corporation, 22 FMSHRC 606, 612 (May 2000). It is likewise the right of the company to know why the Secretary chose to specially assess the alleged violations because the company can hardly show a significant variance is warranted without knowing why the Secretary opted to forego the regular assessment formula. See Order at 4-5. Here, the SAR Forms make available to the company the information it needs. In section 10 of the form the inspector explains why he recommends the alleged violation be specially assessed by reciting the facts underlying the alleged violation, and in sections 11, 12 and 13 the inspector’s supervisor, his assistant district manager and his district manager explain why they agree with the inspector’s factual assessment.

            The deliberative process privilege in general protects the process of deliberations through which the government formulates and implements its policies. Jordan v. U.S. Dept. of Justice, 591 F. 2d 753, 772-774 (D.C. Cir. 1978). Excluded from the privilege are documents consisting wholly or primarily of factual content. See In Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987,992 (June 1992) (quoting National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1118 (9^th Cir. 1988). The Court believes that the conduct of legal proceedings, like the conduct of other governmental functions, is best done in the sunlight of public disclosure. As a result, the Court is unsympathetic to the evocation of privilege claims. In many past instances the Court has found the claims to be unnecessarily secretive and a detriment to the efficient, expeditious processing of the cases before it. Consequently, the Court views such claims with scepticism, and it is against this backdrop that the Court has examined the SAR Forms submitted by the Secretary.

            The Court finds nothing in the SAR Forms that requires protection. The forms contain the facts upon which the special assessments are based, facts that for the most part are already known to the company; e.g., that a cited standard is targeted by the Rules To Live By initiative, that a specific condition is considered to be obvious, that a specific condition is considered to be highly dangerous, that the mine has an especially adverse history of violations of the cited standard. The forms contain no meaningful discussion of the pros and cons of specially assessing the cited standards and no exegesis of the policy reasons behind the Secretary’s choices. Accordingly, the Court ORDERS the Secretary to comply with the company’s discovery request and to provide the company with the forms within 10 days of the date of this order. The Court notes that its ruling is based on the particularities of this case and of the forms before it. The Court draws no conclusions one way or another from what may be contrary and concurrent rulings by the Court’s colleagues (e.g. Hidden Splendor Resources, Inc., 33 FMSHRC 2345 (September 2011)(ALJ Pricilla Rae); Aggregate Industries, West Central Region, Inc., 25 FMSHRC 88, 89 (February 2003) (ALJ Richard Manning)).

David F. Barbour

Administrative Law Judge

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

/lh