FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C. 20001

May 8, 2008

FURTHER ORDER TO SHOW CAUSE

            These matters concern 12 citations that were issued as a result of an inspection of the Old County Quarry conducted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on December 14, 2005. The cited violative conditions have been corrected and the subject citations have been terminated.

            The Old County Quarry is a rock crushing facility operated by SCP Investments, LLC (“SCP”). Pat Stone is the managing partner of SCP. According to Stone, the mine commenced operations in September 2005. Section 109(d) of the Federal Mine Safety and Health Act of 1977, as amended (“Mine Act”), requires a mine operator to file with the Secretary of Labor (“the Secretary”) the name and address of the mine, as well as the name and address of the person who controls the mine. 30 U.S.C. § 819(d). Consistent with the statutory provisions of section 109(d), Part 41 of the Secretary’s regulations requires mine operators to file a Legal Identity Report Form within 30 days of the opening of a new mine. 30 C.F.R. §§ 41.10, 41.11(a).

            At the time of Phillips’ inspection, SCP had not filed the required Legal Identity Report Form registering the facility as an active mine. Consequently, on December 14, 2005, Phillips ordered Stone to leave the mine property rather than allow Stone to accompany him during the mine inspection, reportedly because it was too dangerous given Stone’s lack of Part 46 miner training. See 30 C.F.R. Part 46. Stone, on behalf of SCP, objects to not being allowed to remain on mine property during the inspection.

            Section 103(f) of the Mine Act provides, in pertinent part, “[s]ubject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany” an MSHA inspector during an inspection. 30 U.S.C. § 813(f) (emphasis added). “The right to accompany an inspector on all 103 inspections has been consistently recognized by the Commission and the courts.” Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994). This fundamental right is a qualified right that may only be curtailed by the Secretary’s regulations. Id. at 718. In extraordinary circumstances, the Secretary may preclude the right to accompany an inspector “where necessary to protect the safety of miners.” Id. at 719.

            On March 31, 2007, the Secretary was ordered to show cause, in writing, why the subject citations should not be vacated because MSHA’s mine inspection violated the provisions of section 103(f) of the Mine Act. Specifically, the Secretary was requested to identify any regulation that describes the circumstances that warranted Phillips’ denial of Stone’s right to observe the inspection. In addition, the Secretary was requested to provide any Interpretive Bulletin or Memorandum addressing her implementation of the walkaround rights in section 103(f) that justified the denial of Stone’s participation. The Secretary was also requested to specify, by specific reference to her regulations, the requisite training that must be completed by a miners’ representative, or a mine operator, before he is allowed to be present during an inspection. Finally, the Secretary was ordered to identify, with specificity, the hazards that Stone would have been exposed to if he had accompanied Phillips on December 14, 2005, during this surface mine inspection.

            The Secretary’s response to the Order to Show Cause was filed on April 21, 2008. However, the Secretary did not provide the specific information requested. Instead, the Secretary relied on an inspector’s broad discretion to preclude walkaround rights when necessary to protect the safety of miners. Sec’y’s Resp. at 7.

            Stone’s reply to the Secretary’s April 21, 2008, response to the Order to Show Cause was filed on May 5, 2008. Stone related that Phillips denied his request to observe the inspection, that Phillips escorted him off of mine property, and that he was denied the opportunity to re-enter the mine site to retrieve keys that were left in several loaders.

            As a threshold matter, the wide discretion that must be afforded inspectors with respect to how they conduct inspections must be balanced with the fundamental right of a mine operator to be present during an inspection. While the decision to allow walkaround rights is committed to the broad discretion of an inspector, his discretion is not unfettered and may not be abused. The Commission has noted that an “abuse of discretion” occurs when “there is no evidence to support the decision or if the decision is based on an improper understanding of the law.” Energy West Mining Co., 18 FMSHRC 565, 569 (April 1996) (citations omitted).

            Phillips’ reliance on Stone’s lack of miner training as a basis for denying his section 103 walkaround rights appears to be an “improper understanding of the law.” Miner training is a prerequisite for performing mining activities. Miner training is not required to observe an inspection. Although hazard training may be required prior to the exercise of walkaround rights, despite having been ordered to do so, the Secretary has yet to identify any hazard to support Phillips’ refusal to allow Stone to observe the inspection.

            Accordingly, in order to determine if Phillips’ denial of Stone’s walkaround right was an abuse of discretion and a violation of section 103(f), the Secretary IS ORDERED to provide the following:

            (1) The Secretary should state whether or not she is relying on her regulations to support Phillips’ denial of Stone’s right to observe the inspection. If she is relying on her regulations, the Secretary should provide a copy of the pertinent regulatory provisions.

            (2) The Secretary should provide any Interpretive Bulletin or Memorandum addressing her implementation of the walkaround rights in section 103(f) that justifies the denial of Stone’s right to be present during the inspection. If she is not relying on an Interpretive Bulletin or Memorandum she should so state.

            (3) The Secretary should state whether or not a person who is not a miner, that is selected by miners as their authorized representative, is entitled to section 103(f) walkaround rights. The Secretary should identify the statutory and/or regulatory provisions, if any, to support her position.

            (4) The Secretary should specify, by specific reference to her regulations, the requisite training that must be completed before a miners’ representative, or a mine operator, is allowed to be present during an inspection. If the Secretary believes a miner’s representative must have Part 46 new miner training prior to accompanying an inspector during an inspection she should identify the statutory and/or regulatory provisions, if any, to support such a position.

            (5) The Secretary should identify, with specificity, the hazards that Stone would have been exposed to if he had accompanied Phillips during this surface mine inspection.

            (6) Dismissal is a harsh sanction. Assuming, for the sake of argument, that Phillips abused his discretion and Stone’s section 103(f) rights were violated, what sanction, short of vacating the citations and dismissal of this proceeding, does the Secretary suggest be imposed in this matter.

            IT IS FURTHER ORDERED that above information should be provided by the Secretary within 21 days of the date of this Order. Failure to provide a timely response that directly addresses the information requested may result in the dismissal of this civil penalty matter.

                                                                              Jerold Feldman

                                                                              Administrative Law Judge

                                                                              (202)434-9967

Distribution: (Certified Mail)

Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219

Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723

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