<DOC>
[DOCID: f:ws99353o.wais]
NORTHWEST AGGREGATES
May 22, 2001
WEST 99-353-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 22, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-353-M
Petitioner : A. C. No. 45-03334-05508
v. :
:
NORTHWEST AGGREGATES, : DuPont Pit
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-481-M
Petitioner : A. C. No. 45-03334-05518 A
v. :
:
RICHARD INWARDS, employed by, :
NORTHWEST AGGREGATES, : DuPont Pit
d/b/a, GLACIER NORTHWEST, :
Respondent :
ORDER DENYING RESPONDENTS' MOTION TO DISMISS
Respondents, Northwest Aggregates and Richard Inwards, have
moved to dismiss the petitions for assessment of civil penalties
filed against them and as grounds therefore, assert that the
settlement and dismissal of a petition against another individual
that had been based upon the same underlying citations warrants
dismissal of the petitions against them. Respondents' motion is
based upon an erroneous factual predicate and does not otherwise
establish grounds to dismiss the petitions. Accordingly, the
motion is denied.
The instant proceedings were initiated on September 7, 1999,
by the filing of a petition for assessment of civil penalties
against Northwest Aggregates. The petition was based upon two
citations alleging violations of safety and health standards that
had been issued on February 11, 1999. Subsequently, following an
investigation, petitions were also filed against two individual
Respondents, Richard Inwards and Mark Snyder, pursuant to
� 110(c) of the Mine Safety and Health Act of 1977. 30 U.S.C.
� 820(c). Those petitions were also based upon the February 11,
1999 citations. Mark Snyder was the work-site foreman and
Richard Inwards was the plant superintendent at the time of the
alleged violations. The petitions against the individual
respondents alleged that they were agents of Northwest
Aggregates.
The Secretary subsequently moved to vacate the petition
filed against Snyder. The motion was styled "Joint Motion to
Approve Settlement" and represented that the Secretary had agreed
to "vacate the Petition for Assessment of Civil Penalty against
Mark Snyder. This vacation is based on subsequent interviews and
statements of miners employed by the above-referenced mine."
Motion, at p. 2. On March 7, 2001, an Order of Dismissal" was
entered in that case. The Order stated:
The Secretary has filed a motion to approve settlement.
However, the grounds for the motion are that the
Secretary has agreed to vacate the two citations at
issue in this case. The Secretary has the discretion
to vacate the subject citations, prompting dismissal of
this case.
Respondents argue that since there has never been any
contention by the Secretary that Snyder was not an agent of
Northwest Aggregates or that he had not acted knowingly when
carrying out his duties, the vacating of the citations as to
Snyder indicates that the citations "lacked substantive merit
. . . [and] must also be vacated against Respondents Inwards
and Northwest Aggregates." Motion to Dismiss, at p. 4. The
factual premise for this argument is that the Order of Dismissal
is a final order of the Commission "that the two citations at
issue are vacated" (Id. at p. 6), thereby establishing the lack
of substantive merit of the citations for these cases.
The Order of Dismissal erroneously stated that the Secretary
had agreed to vacate the citations rather than the petition
against Snyder. In fact, the citations have never been vacated
and the Order did not purport to vacate them. It merely
dismissed the "case", i.e., the petition for assessment of civil
penalties that had been filed against Snyder. The dismissal was
based upon the Secretary's determination not to prosecute the
petition for civil penalties against Snyder.
The Secretary has unreviewable discretion to make such
determinations. Bixler Mining Co.,
16 FMSHRC 1427 (July 1994); RBK Constr., Inc., 15 FMSHRC 2099
(Oct. 1993). She can do so for any reason or no reason at all.
There is no inference that can be drawn from the Secretary's
decision not to prosecute a case against Snyder.
While the reasons underlying the Secretary's determination
are not normally discoverable, the Secretary has represented in
her opposition to the motion that through interviews with other
witnesses it was determined that Snyder had been placed in "an
impossible position" such that he should not be held individually
liable. Rightly or wrongly, the Secretary's asserted reason for
deciding not to proceed against Snyder does not implicate the
validity of the underlying citations as to Respondents Northwest
Aggregates and Inwards.
Based upon the foregoing, Respondents' Motion to Dismiss is
Denied.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Deia W. Peters, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212 (Certified Mail)
John M. Payne, Esq., Davis, Grimm & Payne, Marra & Berry, 1111
Third Avenue, Suite 1865, Seattle, WA 98101 (Certified Mail)
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