FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
DENVER, CO 80202-2536
303-844-3577/FAX
303-844-5268
July 30, 2013
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner v. NORTH COUNTY SAND & GRAVEL, INC., Respondent |
: : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. WEST 2010-365-M A.C. No. 04-05632-203553 Mine: C-5 |
ORDER GRANTING THE SECRETARY’S MOTION TO AMEND PROPOSED PENALTY AND
TO DENY RESPONDENT’S MOTION TO STRIKE
Before: Judge Manning
This case is before me upon a petition for assessment of civil penalty under Section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). This matter involves one citation issued to North County Sand & Gravel (“NCSG” or “Respondent”) at its Roadrunner 32 Mine for an alleged violation of 30 C.F.R. § 56.15005. The Secretary proposed a penalty of $35,500.00 under her special assessment procedures. 30 C.F.R. § 100.5. A hearing was held on May 1, 2013. At the start of the hearing, NCSG filed a 43 page motion to strike the Secretary’s specially assessed penalty proposal. Rather than file an opposition to NCSG’s motion to strike, the Secretary filed a motion to amend the penalty proposal and to deny Respondent’s motion to strike the special assessment because it is now moot. The Secretary’s revised proposed penalty is $6,624.00 under her regular assessment formula. 30 C.F.R. § 100.3. Although NCSG does not oppose the penalty reduction, it argues that its motion to strike is not moot.
Pursuant to Commission Procedural Rules 10 and 55, I grant the Secretary of Labor’s motion to amend the civil penalty proposal. 29 C.F.R. § 2700.10 & 55. As stated above, after reviewing the arguments and evidence presented in NCSG’s motion to strike the special assessment, the Secretary determined that the conditions surrounding the alleged violation at issue did not warrant a special assessment. The Secretary therefore seeks to replace the special assessment with a new penalty proposal of $6,624.00.[1]
The Commission has acknowledged that the Commission’s administrative law judges have the authority to grant the Secretary leave to amend citations and penalty proposals in the course of adjudication so long as the modification does not result in legal prejudice to the operator. Wyoming Fuel Co., 14 FMSHRC 1282, 1289-1290 (Aug. 1992). The Commission has held that pleadings may be liberally modified absent a showing of legal prejudice to the party opposing the modification by analogy to Fed. R. Civ. P. 15(a). Cyprus Empire Corp., 12 FMSHRC 911, 916 (May. 1990). Therefore, leave for amendment “shall be freely given when justice so requires.” Wyoming Fuel, 14 FMSHRC at 1290. I find that NCSG will not suffer any legal prejudice in amending the civil penalty because the Secretary seeks to reduce the proposed penalty to ensure compliance with MSHA’s penalty regulations. The timing of the Secretary’s proposal also does not preclude relief. See Mammoth Coal Co., 33 FMSHRC 2348, 2349 (Sept. 2011) (ALJ) (citing Consolidation Coal, 2 FMSHRC 3, 5 (Jan. 1980)). The hearing in this case was held on May 1, 2013, but briefs have not been filed and a decision has not been issued.
Respondent argues that its motion to strike is not moot. First, it contends that the mootness doctrine does not apply in a case where the Commission exercises its policy jurisdiction delegated by Congress. 30 U.S.C. § 815(d). Second, Respondent argues that the motion to strike is not moot because the Secretary has not made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to reoccur. Lastly, it asserts that it intends to seek an award of attorney fees under the Equal Access to Justice Act (EAJA), which was the main issue in the motion to strike; thus, it prevents the motion to strike from being deemed moot.
I find that the procedural and substantive validity of the Secretary’s initial special assessment no longer has any bearing upon the civil penalty proposed by the Secretary or to be assessed by the Commission. The Commission has noted that “it serves no purpose to force the Secretary to continue litigating the merits a citation that [he] has determined to be legally or otherwise unworthy of prosecution.” North American Drillers, LLC, 34 FMSHRC 352, 359 (Feb. 2012).
While the “reasonableness” of the special assessment may be the ultimate issue, the motion to strike raises a myriad of subsidiary issues. The Secretary points out that there would be questions of (1) whether the Commission may strike the Secretary’s penalty proposal without remanding for the Secretary to propose a new penalty; (2) whether the citation at issue was properly selected for special assessment and whether MSHA sufficiently informed NCSG of the reasons for that selection; (3) whether MSHA’s special assessment procedures are procedurally valid; and (4) whether MSHA’s special assessment procedures are substantively valid under the Mine Act. In effect NCSG is asking for a declaratory judgment upon all these issues.
The Commission has held that in order to obtain a declaratory judgment, the party seeking relief must show (1) “that there is an actual, not moot, case or controversy between the parties under the Mine Act;” (2) “that the threat of injury to the complainant is real, not speculative;” and (3) “that the issue as to which relief is sought is ripe for adjudication.” North American Drillers, 34 FMSHRC at 360 (citing Mid-Continent Resources, 12 FMSHRC 949, 954 (May 1990)). NCSG did not make the necessary showing for declaratory relief. It has not identified the particular legal issues it wishes the court to decide, let alone demonstrate that those issues are fit for judicial decision without a special assessment at issue and a supporting record for the court to review.
It is important to understand that Commission judges assess penalties de novo. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). In determining the amount of the penalty, neither the judge nor the Commission is bound by a penalty recommended by the Secretary. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). The Secretary’s penalty proposal can be used as a starting point in a judge’s analysis of the penalty criteria in section 110(i), 30 U.S.C. § 820(i), of the Mine Act when assessing an appropriate civil penalty, but judges are not required to do so.
I find, based upon the Secretary’s proposed amendment to his penalty proposal, that the motion to strike the civil penalty is moot for the purpose of this court assessing an appropriate civil penalty in this case, assuming I find that NCSG violated section 56.15005. My ruling is limited to this civil penalty docket and I make no finding as to the relevance or mootness of NCSG’s motion to strike the Secretary’s specially assessed penalty in an EAJA proceeding.
For the reason set forth above, the Secretary’s motion is GRANTED.
/s/
Richard W. Manning
Richard Manning
Administrative Law Judge
Distribution:
Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708
C. Gregory Ruffennach, Esq., 1629 K Street, N.W. STE 300, Washington, D.C. 20036
RWM
[1] NCSG contends
that this proposal is inaccurate because it does not include a 10% reduction
for good faith abatement. It argues that
the regular assessment should be $5,961.00.