By Ellen Smith
eview Commission Judge William Moran denied a construction company’s motion to conduct depositions where a case was designated for a simplified proceeding under Commission Rule 29 CFR §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.
This case involved one 104(a) citation issued under§56.14112(b) at John Richards Construction in Missoula County, Mont. A MSHA inspector allegedly found a guard missing at a self-cleaning tail pulley at the bearing/take up area. Because of its location, away from the travel way, the citation was not designated as S&S and the risk of injury was marked as “unlikely.” MSHA proposed a $100 penalty.
The company said in its motion that it was entitled to “due process,” and that it had a “right” to take depositions.
ALJ Moran said, “This matter fits squarely within the type of case that is completely appropriate for simplified proceedings ... the single citation involved here includes all of the characteristics identified in that provision. It is noted that, to fit within such eligibility, only ‘one or more’ of those characteristics need be present; there is no requirement that all of the characteristics be present.”
However, its “right” to take depositions was another matter.
The company will have the opportunity during the hearing “to present witnesses on its behalf, as well as to cross-examine the government’s witnesses, and to present exhibits, as well as to review the exhibits of the opposing side, all comport with satisfying due process. Depositions are not an essential part of due process for matters of this nature,” Moran wrote.
The ALJ also noted the company had already been given the inspection file that includes all of the MSHA inspector notes, inspection forms and copies of the citation.
“Here, with the prehearing exchange of expected witnesses, together with a statement about the subject of their testimony, and the exchange of all exhibits intended to be introduced, these disclosures insure that fundamental fairness will be present,” Moran said.
The secretary also pointed out, even where a matter is not under simplified proceedings, the ALJ has the discretion to determine whether discovery should be limited in the interests of time, burden to the parties, and expense under 29 CFR §2700.56(c).
JOHN RICHARDS CONSTRUCTION, 1/16/2014, Docket No. WEST 2011-129-M; 21 MSHN D-293