FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19^th St. Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

October 6, 2015

SECRETARY OF LABOR  MINE SAFETY AND HEALTH      ADMINISTRATION (MSHA),                           Petitioner,              v. COEUR ALASKA, INC.,                           Respondent.

CIVIL PENALTY PROCEEDINGS Docket No. WEST 2015-346-M A.C. No. 50-01544-370187 Docket No. WEST 2015-401-M A.C. No. 50-01544-373015 Docket No. WEST 2015-422-M A.C. No. 50-01544-373488 Docket No. WEST 2015-470-M A.C. No. 50-01544-375449 Mine: Kensington

ORDER GRANTING RESPONDENT’S

MOTION TO COMPEL MSHA SPECIAL ASSESSMENT REVIEW FORMS

Before: Judge Simonton

            These cases are before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. The Chief Judge assigned these matters to me on June 22, 2015 and distributed the court’s standard prehearing order to both parties. Within, the parties were instructed that,

… they shall provide a copy of all relevant, discoverable documents that relate to each citation/order including, but not limited to, copies of inspection notes, citation documentation, narratives, photos … Notes taken during or shortly after the inspection that contain factual information are not privileged and must be disclosed as a part of the exchange of information.

Prehearing Order, 1.

            On September 17, 2015, the Respondent moved to compel the production of MSHA’s special assessment review forms (“SAR forms”) for the six specially assessed citations contained in the above dockets. Resp. Mot., 1. The Secretary opposed the motion, stating that the SAR forms contain the “pre-decisional” thoughts, opinions, and recommendations of MSHA personnel and are protected by deliberative process privilege. Sec’y Ans., 4-5 (citing Jordan v. U.S. Dept. of Justice, 591 f.2d 753, 772 (D.C. Cir. 1978); In re Contests of Respirable Dust Sample Alteration Cases 14 FMSHRC 987, 990-93 (June 1992)(“Dust Cases”); Consolidated Coal, 19 FMSHRC 1239, 1246 (July 1997).

            On September 28, 2015, I ordered the Secretary to submit the SAR forms for my en camera review to determine whether the SAR forms contained information protected by the deliberative process privilege. Order for En Camera Review.[1] Within that order, I acknowledged the current split in ALJ ruling on this issue. Id at 2. However, I also highlighted several of my colleagues’ findings upon actual review of SAR forms that,

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.

Consol, 2012 WL 4753924, *2 (July 2012)(ALJ Barbour)(finding that SAR forms were not protected by deliberative process); see also Traylor Mining, 37 FMSHRC 1373, 1373 (June 2015)(ALJ Manning)(stating that disclosure of SAR forms would not expose the Secretary’s deliberations in any meaningful way).

            After en camera review, I conclude that the SAR forms for Citation Nos. 8611879, 8786162, 8611872, 8611874, 8611875, and 8611880 do not contain any deliberative content.

On the first substantive section of the form, the inspector summarizes the facts of the citation at the beginning of the SAR form and recommends the citation for special assessment. On the second portion of the form, a series of supervisors either approve or disapprove the special assessment designation with very brief one or two sentence statements.

            All of the information contained on these forms is strictly factual in nature, comprised primarily of concise descriptions of the alleged violation’s gravity and the operator’s negligence. None of the information on the submitted forms reveal broad policy considerations or the “deliberative” nature of the agency’s decision making process. Accordingly, the forms are not protected by the deliberative process privilege and must be disclosed. Dust Cases, 14 FMSHRC at 1993 (“purely factual information that does not expose an agency’s decision making process does not come within the ambit of privilege”).

            Although not critical to my ruling, I must note that for at least one citation, Citation No. 8611880, there is a unique fact listed in the inspector’s summary within the SAR form that is not fully described in either the original citation or the Special Assessment Narrative form. Regardless of whether or not this or other facts are available through other disclosures, the Respondent is entitled to the full factual basis upon which the special assessment was issued so that it may mount a complete defense to both the fact of violation and the assessed penalty. See Traylor Mining 37 FMSHRC 1373 (stating that any significant deviation from the Secretary’s penalty assessment must be explained by the ALJ); see also Sellersburg Stone, 5 FMSHRC 287, 293 (Mar. 1983); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Mize Granite Quarries Inc., 34 FMSHRC 1760, 1763 (Aug. 2012).

ORDER

            The Secretary is ordered to provide complete copies of the SAR forms for Citation Nos. 8611879, 8786162, 8611872, 8611874, 8611875, and 8611880 to the Respondent without delay.

/s/ David Simonton

                                                                                    David Simonton

                                                                                    Administrative Law Judge

Distribution:

Sean Allen, Office of the Solicitor, MSHA Backlog Project, 1999 Broadway Suite 800

Denver, CO 80202-5708

Donna Vetrano Pryor, Jackson Lewis, LLP, 950 17^th Street, Suite 2600 Denver, CO 80202

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[1] I incorporate all observations, findings, and references of the September 28 Order within this ruling. A copy of the September 28 Order has been attached for record purposes.