FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

October 28, 2011

    DECISION

Appearances:

M. RosAnn Beaty, US Department of Labor/MSHA, Post Office Box 560, Norton, VA 24273

Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the Solicitor,

1100 Wilson Boulevard, 22nd Floor West, Arlington, Virginia 22209-2247

Harry Meador, Mining and Property Specialists, Inc., 1912 Wildcat Road, Big Stone Gap, Virginia 24219

Before: Judge William Moran

            A hearing was held in this matter in Big Stone Gap, Virginia on September 29, 2011. At the conclusion of the sides evidentiary presentations in the hearing, the Court suggested, and the parties accepted, that it was able to issue an immediate oral decision, addressing all aspects of the case. In accepting the Court’s suggestion, the parties waived the right to submit post-hearing briefs. In short, the Court upheld the single violation involved in this matter and imposed a $1.00 (one dollar) civil penalty. The Court explained on the record the basis for its findings and advised that a written decision would be issued commemorating the oral decision. While the Court advised that this written decision would, hopefully, be more polished than its oral decision, it assured the parties that the former would not distort the essence of the oral decision.

            A single violation, a section 104(a) citation, listing the gravity as “unlikely” and the negligence as “moderate” and described as not “significant and substantial,” was issued to Mining & Property Specialists on August 12, 2010, for an alleged violation of 30 C.F.R. Section 75.512 was cited. That section provides that:

                        All electric equipment shall be frequently examined, tested, and

                        properly maintained by a qualified person to assure safe operating

                        conditions. When a potentially dangerous condition is found on

                        electric equipment, such equipment shall be removed from service

                        until such condition is corrected. A record of such examinations

                        shall be kept and made available to an authorized representative

                        of the Secretary and to the miners in such mine.

(emphasis added).

            The last sentence of the standard was emphasized because it is the only aspect involved in this case. It is uncontroverted that on August 12, 2010, MSHA Inspector Richard Whitt issued the citation at issue in this case. Citation Number 8170070 describes the cited condition or practice as follows:

                        The Electrical Examination Record book for the c/n 2 four-wheel

                        personnel carrier being used to transport miners to and from the

                        001 MMU could not be made available to an Authorized Representative

                        of the Secretary of Labor or to the miners at this mine.

            Mining and Property Specialists, Contestant and Respondent in these proceedings (hereinafter, “MAPS”) contended that it had not violated the cited standard, asserting that the Record Book was “made available.” It is MAPS’s position that, as the Record Book was at all times available at its offices, an off-mine site location, which is only 9.1 miles from the mine, it was in compliance with the standard.

            At the hearing, there were no factual disputes in need of resolution. MAPS concedes the record book was not at the mine site itself. It contended that all the inspector had to do was to drive to MAPS’ office where it would be made immediately available for the inspector’s review, or that it was willing to send a facsimile of the record book to the mine when requested by the Inspector. MAPS stated that keeping the record physically on the personnel carrier had caused problems because it was subject to weather and other factors which caused deterioration of it. It contended that the issuing Inspector’s residence was directly along the route from his home to the mine and that therefore the Inspector would not need to go out of his way to see the record book.

            The Secretary acknowledged MAPS representations, next above, however it contended that the requirement that “a record of such examinations shall be kept and made available to an authorized representative of the Secretary and to the miners in such mine” must mean that the records be located at the mine site, not at a nearby, but off mine site, location. The Secretary also identified practical problems and concerns with MAPS’ interpretation. It noted that an inspection could occur at any time, including evening or weekend hours, and MAPS’ witness Ms. Dillon, administrative manager for MAPS’ office, agreed that the office was not open at such times.

            The Secretary, while not asserting that any falsification was present here, expressed that, it was necessary that books be immediately available. A delay in presenting records could present the risk that such books could be edited before being provided to the Secretary’s duly authorized representative. The Secretary also pointed out that it has no authority to go the MAPS office and demand production of the record book because the MAPS office is not a mine and accordingly it has no mine identification number. Thus, the Secretary is without jurisdiction to enter MAPS office. Also, as the standard also requires that the records be made available to the miners, maintaining the record book some 9 miles from the mine would, as a practical matter, make the records unavailable.

            In closing remarks, the Secretary asserted that a fair reading of the text of the standard implicitly requires that the record book be available at the mine site and not simply at a nearby location. The Secretary also pointed out that, even if the language itself does not direct this conclusion, per the Chevron analysis, 467 U.S. 837 (1984), deference must be afforded to the Secretary’s reasonable interpretation of the standard. The Court agrees on both counts; the language, while not explicit, fairly can be read to require that the record book be at the mine. Further, even if it is not so viewed as an inherent requirement of the standard, the Secretary’s interpretation is certainly reasonable under a Chevron analysis.

            In issuing its oral decision affirming the violation, the Court noted that MAPS position would create interpretation problems. For example, if per MAPS’s contention, putting aside for a moment the significant issue of jurisdiction to inspect a property which is not a mine, the Court noted that if one were to conclude that 9 miles was close enough to be consider that the records were “available,” the next question would be whether 10 miles was also sufficient. Under that approach, there would be no reasonable yardstick to determine how far off a mine site record books could be kept.

            ACCORDINGLY, the Court determined that the violation was established and the Citation was AFFIRMED.

            Addressing the civil penalty aspect, the Court noted that the Secretary sought a proposed penalty of only $100.00 (one hundred dollars), and, as noted at the outset, there was no contention by the Secretary that the equipment had not been frequently examined, tested, and

properly maintained by a qualified person to assure safe operating conditions. The Citation was strictly about availability of the record book. Accordingly, the gravity was listed as “unlikely,” the negligence as “moderate” and it was listed as not “significant and substantial.” Upon consideration of each of the statutory penalty criteria, the Court has taken the above into account and has further considered that MAPS had a good faith, though erroneous, interpretation of the standard’s requirements. For this first instance of this violation and having taken into consideration MAPS earnest belief that it was in substantial compliance, the Court believes that a penalty of $1.00 (one dollar) is appropriate.

ORDER

Citation No. 8170070 is AFFIRMED. Contestant/ Respondent MINING & PROPERTY SPECIALISTS is ORDERED to pay the civil penalty imposed in this matter of $1.00 (one dollar) within 30 days of this decision.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution: 

Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the Solicitor,

1100 Wilson Boulevard, 22nd Floor West, Arlington, Virginia 22209-2247

M. RosAnn Beaty, U.S. Department of Labor/MSHA, Post Office Box 560, Norton, Virginia 24273

Harry Meador, Mining and Property Specialists, Inc., 1912 Wildcat Road, Big Stone Gap, Virginia 24219