FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958/ FAX: 202-434-9949

September 22, 2011

ORDER DENYING PETITIONER’S MOTION

FOR SIMPLIFIED PROCEEDINGS

            This case is before me on a Petition for Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the “Act”). The Secretary has filed a Motion to Designate for Simplified Proceedings claiming that the docket fits the criteria set forth in Commission Procedural Rule 101 for simplified proceedings designation. 29 C.F.R. § 2700.101. Respondent has filed a motion in opposition. For the following reasons, I deny the Secretary’s motion.

Factual and Procedural Background

            On March 10, 2009, MSHA inspector Keith Ryan inspected Grand Eagle Mining, Inc.’s Grand Eagle Prep Plant mine. Ryan completed a contested search of a electrician’s personal vehicle, a Dodge Ram 1500 truck, that was located on mine property, and then issued Citation No. 8494369 finding that the truck was not provided with a usable fire extinguisher that had a current examination.

            On May 20, 2010, the Secretary filed a Petition for Assessment of Civil Penalty for $100 pursuant to Section 104(a) of the Act. On June 10, 2010, a timely Answer was filed by the Respondent along with request for discovery.

            On January 20, 2011, I issued a Pre-Hearing Order directing the parties to begin settlement negotiations and report back to me within 60 days. On July 14, 2011, I convened a conference call with the parties. The Secretary claimed that the inspection of the truck was valid and lawful because the Respondent gave the owner a “travel stipend.” Respondent claimed that the “search” was an unreasonable search and seizure under the Fourth Amendment. Any stipulated facts or Motion for Simplified Proceedings were due on August 1, 2011.

            On July 28, 2011, the Secretary submitted the instant Motion to Designate for Simplified Proceedings and a Request for Subpoena Duces Tecum. On August 5, 2011, the Respondent submitted its Response in Opposition.

Disposition

            The Secretary’s argues that Docket No. KENT 2009-1118 meets the criteria set forth in Commission Rule 101 regarding Designation for Simplified Proceedings. 29 C.F.R. § 2700.101. Rule 101 requires that cases designated for Simplified Proceedings not involve fatalities, injuries, or illnesses, and generally include one or more of the following characteristics: the case involves 104(a) citations issued under the Mine Act; the proposed penalties are not specially assessed under 30 CFR 100.5; the case does not involve complex issues of law or fact; the case only involves a limited number of citations to be determined by the Judge; the case involves a limited penalty amount; the case involves a hearing of limited duration; the case does not involve only legal issues; and the case does not involve any expert witnesses. 29 C.F.R. § 2700.101.

            Although most of these criteria are met here, the Respondent issued discovery before the Secretary requested the simplified proceedings designation. In addition, the constitutional issue raised by the Respondent is arguably a complex issue of law that militates against Docket No. KENT 2009-1118 being designated as a simplified proceeding. In addition, it is unclear whether a personal automobile on mine property or used by a miner to perform certain tasks is covered by 30 C.F.R. § 77.1110 dealing with examination and maintenance of firefighting equipment, as set forth in Subpart L entitled “Fire Protection.” Cf. Empire Iron Mining Partnership, 19 FMSHRC 1912, 1923 (Dec. 1997) (Judge Hodgdon) (describing issue of whether standard covered miner’s failure to maintain control of personal vehicle on mine property as one of first impression). In these circumstances, I find it inappropriate to designate this matter for simplified proceedings at this juncture.

            In light of the foregoing, the Secretary’s Motion to Designate for Simplified Proceedings is DENIED.    

                                                                        Thomas P. McCarthy

Administrative Law Judge

Distribution:

John A. Mulvey, Esq., U. S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219

Jeffrey Phillips, Esq., Steptoe & Johnson, P.O. Box 910810, Lexington, KY 40591

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