Original Sixteen to One Mine, Inc.

Respondent's Post Hearing Brief

The Company posted its Brief for the MSHA administrative hearing held on October 15, 2003.


It was mailed to administrative Judge Gary Melick today. Two citations issued in September 2000 were contested. “It is more than money and more than principle that we object to,” said Michael Miller, who represented the Company. During the period between 1997 and 2001, MSHA agents were plummeting the miners with unreasonable interpretations of standards, which threatened their very existence. Many of the small operations were hit hard. The big operators bitched a little but paid the fines as just another cost of doing business in the USA. Recent graduates of the MSHA academy in West Virginia attacked miners in Nevada, Idaho and the Sixteen to One in Alleghany. Writing citations and collecting fines were the orders from above. Somewhere safety and common sense disappeared. A decision is expected within 90 days. The Brief follows:


RESPONDENT’S POST HEARING BRIEF (Citations 7992100 and 7987759)


Jonathan Farrell’s background, training and experience are well documented. He is a sincere and dedicated miner who rose to the position of mine manager in America’s oldest gold mining company. The record provides his capability to assess risk. He clearly understands MSHA standards and has participated in numerous inspections. “Training never ends. Training goes on for your entire life and career.” (TR. P27, L12-13). The respondent upholds the standards put forth by the government regarding training. “I know it’s always been our practice to train initially.” (TR. P29, L12-13). With regard to the incomplete training certificate, “I can say that he (Joe Barquilla and/or Bob Hale) would not be underground without being trained.” (TR. P29, L23-24). The Court states “But the inspector says that was not complete.” The Witness states, “It was a clerical oversight.” (TR. P30, L 4-6). Respondent utilized a legal method to document on going training that fit its limited resources as described on Page 31 Line 5-19.

Under cross-examination Jonathan Farrell offers an explanation as to the way refresher paperwork was handled and testifies that, “He would have been trained.” (TR. P 31, L5-19).

Michael Miller testified that he is a hands on President (since 1983) and relies on hired personnel to perform day-to-day operations. The strongest testimony to affirm that Joe Barquilla was properly trained before he went to work underground is direct but tangential to the misunderstood box checking and signing of paper. “I have had my own son work at this mine. I want to mention Joe Barquilla is the son of John Barquilla who works at this mine.” (TR. P36, L13-24). Miller knows the mine and the people he works with. The implication is that John Barquilla would never allow his son to work underground without the required training.

The court inquires, “What can the government rely on and do if, on the face of a piece of paper, training was not complete.” (TR. P36, L25 to P37, L4). The government inspectors should follow the mandates of the Act, subsequent standards and especially the MSHA Policy Manual that require inspectors to include all of the factors they rely on to make a judgment. (TR. P37, L5-13). Respondents Exhibit B1 is Inspector Curt Petty’s notes, which were not introduced into evidence by the government. Petty’s notes do not include the required policies and procedures necessary to support his opinion that the incomplete documents mean that training was not done. The burden of substantial evidence falls on the inspector. The MSHA Policy Manual requires inspectors to keep copious notes. “There is nothing in the notes I have read from Mr. Petty today that will support the allegations that are being presented by Mr. Wilkinson.” (TR. P 37, L26 to P38, L 3).

MSHA inspector Petty testified that “Part of the inspection we have to review the training files for the miners who work at the mine itself”. (TR. P 8, L9-11). His inspection was on September 21, 2000.

The Court asks Petty, “How did you determine they had not received training in these areas?” (TR. P12, L 16-17). He relied on the markings of a Form 5000-23, which were only partially completed. The court asks Petty, “Did you ask the gentlemen themselves?” (TR. P12, L 22). Petty responds, “No, sir, I don’t recall doing that.” (TR. P12, L23). Complete training is required prior to going into work areas. (TR. P13, L 20-21). Hale began work in December 1999. Barquilla began work in March 2000. (TR. P13, L24-27). Petty admits to some confusion. (TR. P20, L3).

During the discussion of termination of the citation on Pages 21 line 20 to Page 23 line 10, the paper trail states that 1. A citation for “miner’s working untrained in numerous areas” was issued at the end of the shift on September 21, 2000 and 2. The miners were trained by the next day, September 22, 2000, when Mr. Petty returned to the mine. Petty testifies that two areas, Electrical and First Aid would require at least eight hours of training. No one told Petty that the miners received additional training. (TR. P22, L17-20). But “All the boxes were checked at that time.” (TR. P22, L17).

Question: “Is it possible you could sign that document today and the training took place months ago?” Petty answers, “It’s possible. Certainly it’s possible.” (TR. P23, L8-10).

Hale worked underground for ten months prior to the issuance of this citation. Barquilla worked six months prior to the issuance of this citation. MSHA conducts at least four inspections per year. It is reasonable to expect that prior inspections would reveal the existence of untrained miners working underground. To not assume this is to assume that the other inspectors failed to notice a most elementary procedure in the mining industry.

Inspector Bruce Allard describes what he witnessed on the 1700 level of the mine that led to the citation that was written to Jonathan Farrell on September 22, 2000; “He took it (a sign) from its’ position, turned it, and with the back of his pipe wrench, nailed it into a piece of lumber” (TR. P41, L5-7). He did not say where the “nail” came from, how Farrell got the sign down, or any condition of the material the “nail” was driven into. Furthermore, he never saw the nail and was standing about 6 to 20 feet from the scene of the alleged violation. This is a dark underground mine and it is factually correct that Farrell and the Secretary’s Inspectors had only their hat lamps to illuminate the area.

Allard recites the MSHA requirement; “Eye protection will be worn in and around areas of the mine where a hazard to eyes could exist.” (TR. P41, L4-15). His determination was based on “striking a rusty nail” whereby a chunk of metal or rust could penetrate his eye. (TR. P41, L20-22).

Allard’s opinion was that Farrell’s act was reasonably likely to cause a permanently disabling eye injury. He based his opinion that “the striking metal on metal, especially rusty metal” is normally disabling. (TR. P42, L8-9). Allard admits that Farrell told him that their practice was for the mines to wear eye protection when it was needed. (TR. P42, L18-20).

Allard did not issue a citation until the next day. While his reasoning for not doing so may be reasonable (he was reflecting on the severity of the event) it is unreasonable and not the practice of mine Inspectors to neglect to discuss the event at the time of occurrence. If Allard’s five pages of testimony provide the evidence to support “that it is reasonably likely and highly negligent” and that Jonathan Farrell committed a breach of the Secretary’s standards for eye protection, then America’s mining industry will be extinguished in no time! To quote Mr. Farrell, “My conclusion was that the basis for this citation was that it was for no other reason than vindictiveness. I can’t see any other reason. If it had been to facilitate my safety, I would have been informed at the time that I ‘jeopardized my eyesight’.” (TR P70 L3-7)

Allard continues a long documented pattern of incorporating incomplete logic, poor assimilation of facts and unsupported leaps to opinions with regard to the operator. In this case it is with the miners regarding their collective awareness of, and practice of, eye protection and hazards. Question, “So, any time anyone drives a nail with the back of a metal pipe wrench he must wear glasses/eye protection?

Allard answers, “Anytime? Yes. I would write a citation for anyone driving any piece of metal with another metal object. I absolutely would write a citation.” (TR. P56, L14-18). This is nonsense and clearly is not what the standard says. The standard requires that a hazard must be present for a violation to occur. By Allard’s statement it demonstrates his inability to conduct inspections according to the intent and mandate of the law.

Question: Is it possible to strike metal to metal and have a situation where there would be no hazard to the striker? Answer: Certainly possible. (TR. P58, L16-18). While the circumstances of his first testimony were not constructed exactly as his second, Allard goes on to list the condition Jonathan faced, “He hit the object hard enough to drive it into the wood. (TR. P 50, L28). Yet Allard “couldn’t tell you” what the wood was like. (TR. P59, L1-2). Did Allard examine the nail, screw or metal? Question, “Did you go up close to look at it?” Answer, “I couldn’t answer that.” (TR. P59, L13-14).

Under direct examination, Farrell’s injury record for 22 years is exemplary. In his career in mining, he had recommendations to become an instructor by MSHA Inspectors who verified his knowledge of MSHA standards. It was established that Respondent had safety policies and provided safety glasses to its miners. Furthermore, the operator went to great lengths to meet safety policies and standards to fit the actual circumstances of the underground conditions at the Sixteen to One Mine. (TR. P 63, L1-14, L18-28).

Farrell clarifies that the tool described as a pipe wrench is actually a “rap wrench” and is very well known in the mining industry as a combination hammer and wrench. (TR. P64, L15-19).

Farrell clarifies that the other metal object presented by Allard as a rusty nail was actually a roofing screw. Allard was 6-20 feet away from the object. This testimony in itself casts doubt that Allard had any idea what Farrell actually tapped into the wood. (TR. P64, L19-20). “I was able to twist it in most of the way, and I simply bumped it a little more. It was nothing more than a slight tap.” (TR. P64, L20-22). “The screw that I hit was not rusty. It was not of a type that would lose any piece.” (TR. P70, L19-20). “I did not hit it hard. It was a hex screw that was commonly used for roofing, and it was through a piece of fiberglass sign into a piece of rotten wood. I can almost push it in by hand all the way. I don’t feel that there was a hazard. (TR. P20, L21-26).

Agent Petty never interviewed either of the miners alleged to be untrained. Petty relied solely on the training files for the miners who work underground at the mine. (TR. P8, L 9-11). Petty was at the mine the next day. It was Petty’s duty to ask the miners about their training because the MSHA policies require an inspector to do a comprehensive investigation before writing a citation. Petitioner offers incomplete records of the two miners, Joe Barquilla and Bob Hale. Petitioner’s Statement of Facts also reveals required training for John Barquilla, Joe Barquilla’s father. Petty’s testimony is based upon the lack of completion of check marks and a signature by the trainer. All of the references that the miners were not trained have no basis in fact. No evidence was ever entered that they were untrained, except for the omission of completed paperwork. Petitioner misrepresented the position of Jonathan Farrell regarding ongoing training. Petty’s recollection of his discussion with Farrell, as described on page 4 of Petitioners brief has no factual basis. Mr. Wilkinson inserts his own ideas as to the standard allowed to newly employed, inexperienced miners and inaccurately cites TR. P13, L1-16.

Mine Manager Jonathan Farrell and Mine President Michael Miller testified to Respondents knowledge and practice of training and retraining Sixteen to One miners. The Company has an exemplary record of training since the inception of MSHA and the training requirements. Allard’s attitude of vindictiveness, poor judgment and a desire to punish Respondent is well documented in three prior hearings. Patterns of behavior are tools used by many government agencies, including MSHA, to strengthen their allegations of wrongdoing. Bruce Allard is a first class example of a government employee utilizing this technique. His veracity is fair game because he is the only person representing this position. A legitimate question for the court to ponder is, “What was Petty doing?” He was there at the time of the alleged violation. Why did Respondent not seek confirmation by him? Petty was present at the hearing and he was also present during the inspection on Level 1700 of the 16 to One Mine.


With regard to Petitioner’s legal argument A 1; No evidence was presented that the respondent failed to provide two miners with complete new miner training. The conclusions support only that the certificate form was not properly checked or signed.

Jonathan Farrell underwent new miner training and completed the training before he started work in 1994. He knew the company’s policies and procedures for training new miners because he was a new miner himself. Respondent used form 5000-23 (1994). (TR. P27, L14-16). As manager, Farrell had the responsibility to see that the proper people trained the miners, because he was not a trainer himself until after September 21, 2000.

Since the Court represents that the history of what happened in the past is not really relevant to what happened in this case, much of the Petitioner’s diatribe is not really relevant. The Petitioner places value on a previous discussion between Petty and Farrell as evidence of Farrell’s ineptitude and culpability and references it in her brief on page 4. Farrell told Inspector Petty that he believed that the standard allowed newly employed inexperienced miners to begin work and complete training while they worked. (TR. P13, L1-16) is not consistent with other testimony. Barquilla and Hale were not newly trained miners on September 21, 2000. (Petty’s understanding was inaccurate). Farrell testifies, “You had to have 40 hours before you went there, but the training never ends.” (TR. P27, L11-12). Mr. Wilkinson’s brief misstates the record. On Page 6, last paragraph, he represents to the court that, “Farrell responded to the violation by stating that he did not know that the regulations required complete training prior to the miners before beginning work and references TR. P12, L2-10. Reference TR. P12, L2-10 has no such language. Wilkinson’s assertions and his following references are untrue.

The Petitioner continues its theme that an untrained and inexperienced miner working underground exposes that miner to a reasonable likelihood of serious injury, citing various administrative decisions. No one will dispute that reality. The inspector made no effort to collaborate his opinion that Hale and Barquilla were untrained. He elected instead to present a more serious accusation. He never talked to the miners involved, although they were available. He never spoke to the trainer, although he knew Mr. Shappert and also knew that he was the hoist operator. He presents no evidence, not even the actual certificates for Hale and Barquilla, to support a violation of untrained miners working for Respondent. Respondent is unable to respond to the unclear language on Page 9, history of violations. None of these former employees currently work at the mine or are in the geographical area.

Respondent does not challenge the language or intent of 30 CFR §57.15004. The qualifier is “where a hazard exists which could cause injury to unprotected eyes.” Bruce Allard states his rigid belief, which goes against the standard. He is just plain wrong. The Petitioner again cites cases to support her positions that do not relate to the specifics of this hearing. Secretary of Labor v. Sanger Rock and Sand (see brief Page 10). Secretary of Labor v. Southway Construction Company (see brief Page 10). A rap wrench is not a sledgehammer. Tapping a hex screw into decomposed wood is not hammering. Tapping a screw is not breaking rocks with a sledgehammer. Secretary of Labor v. John Peterson (see brief page 10).

The Petitioner says that Allard based his conclusion on industry practices as well as his personal experiences. It is obvious that Allard has no experience with industry practices in the Sixteen to One mine or similar Sierra Nevada hard rock underground mines. He continually misnames the common tool Jonathan used to lightly tap the screw. All the miners at the Sixteen to One mine have a rap wrench on their belt. The Petitioner continues to use Allard’s misrepresentation even though the tool was identified by Farrell as a rap wrench, not a pipe wrench. The Petitioner’s interpretation is “plainly erroneous or inconsistent with the standard.” Allard’s personal experience of avoiding injury to his eyes by using safety glasses when breaking rock (brief page 11) is irrelevant. Farrell was not breaking rock. Breaking a rock with a hand held tool requires a great deal of energy, effort and force. Safety glasses should be worn during this activity. The jump to the Petitioner’s representation, “As such, Farrell’s actions resulted in a clear hazard to his eyes and he should have worn safety glasses to mitigate the harm” is shameful.

The statement that John Peterson, with 30 years of mining experience, violated the same standard used to cite Jonathan Farrell is irrelevant. Petitioner presents incomplete logic and again leaps to put Farrell and his actions of tapping a screw into decomposed wood with a rap wrench is a similar act requiring similar penalties.

Respondent asks the Court to evaluate Wilkinson’s position and argument that, “His (Farrell’s) experience as a miner and mine manager is irrelevant to whether a hazard existed at the time of the incident. He says doing so would “frustrate congress” intent under the Act. Quite the contrary is the case. Congress recognizes that the miners are the ones to evaluate the day-to-day conditions underground. Respondent believes that MSHA recognizes this as well. Apparently the U.S. Solicitor, who has no training or experience underground, has some other unidentified approach to continuing the exemplary safety records of the American mining industry.

Farrell testified regarding the time differences between the citation and the allegation against him and the actual incident. He did so to point out Allard’s inconsistent behaviors regarding Industry practices. He offers his opinion that Allard was vindictive. In prior hearings respondent testified that MSHA Inspectors have been promoted based upon their aggressive approach in issuing citations. Several former MSHA employees and several current MSHA employees informed Respondent of this. Even though Bruce Allard was a relatively new Inspector, he was promoted to the position of Supervisor after his vigorous attack on Respondent. (TR. P 39, L18-21). Petty was relocated and also promoted.

Respondent agrees with the stated responsibilities of managers and supervisors and inspectors as described on page 14 of the Brief. Steve Shappert was the approved trainer. He more than meets the requirements of a person with Operation responsibilities for the Sixteen to One Mine “Agency depends on the agents ability to act on behalf of the principal.” (Page 14 of Brief). Miller testified to his confidence in Farrell and those charged with the responsibility of safety training. Farrell correctly was confident that Steve Shappert would perform his instructional duties without the need to micro manage Shappert’s work. Whether a business is small like the Respondent’s or large like the Federal Government, certain elements of trust are necessary. Farrell performed his duties with competence. In contrast, Inspectors Allard and Petty did not. Shappert just forgot to complete the form.

Throughout his brief, Wilkinson refers to hazard to the eyes, in the face of hazard, etc. as his argument that safety glasses must be worn and Farrell violated a standard of care. Just writing it does not make it true. No hazard, even a potential hazard, existed during Farrell’s action of relocating a sign on the 1700 Level.

Wilkinson jumped at Miller’s testimony that “one time a miner was striking a wire with a tool in order to break the wire and as a result, was issued a citation.” Miller volunteered this information. The action was dangerous and Respondent did not object to the citation. In volunteering this information, Miller showed the responsible extent to which he and Mine Manager Farrell handled the incident. (TR. P73 L3-22). Upon direct examination, this was the first issue raised by Miller, that Farrell, the manager, knew of and agreed with the need to wear safety glasses during hazardous activities. Ignorance of the standard or the actual recognition of a hazard is not offered as a defense. In actuality, the opposite is true in this case. Safety glasses should be worn where hazards exist. Respondent recognizes that tapping a hex screw into decomposing wood creates no danger that flying bits of metal would (or could) have the “potential” to create a hazard. It is an impossible scenario.

Training newly hired miners and refresher courses are good standards for the mining industry to follow. Miners continue to expand their tasks and abilities at the mine. Specialization as is customary at so mant of the large mines is not practiced. Placing miners in the inherently dangerous Sixteen to One Mine without required training would be a serious, significant and substantial violation of the Act; however, this is not the case before the Court. Furthermore, in its long history of operations, Respondent has never been cited for such an egregious violation. Jonathan Farrell and Michael Miller have displayed their high character qualities in this and other areas of the health and safety of Respondent’s miners for over thirty years. Allard and Petty are fairly new inspectors, who were trained during a very questionable time of MSHA conduct under J.Davit McAteer.

In the specifics before the Court, Miller and Farrell testified that it is their policy to use form 5000-23 as an ongoing reference tool for additional training beyond the standard such as refresher and task training for special equipment. MSHA has no policy against this and recognizes that the primary responsibility for safety rests within the conduct of the miners, the operator and the company.

Petitioner makes an impassioned plea for discrediting the financial data and testimony of Respondent. Attorney Wilkinson testifies, “I’m not a securities lawyer. I don’t know if it (10 Q SEC filing) needs to be audited or in fact…” (TR 78 L10-14). The Court responds, “We will have to have legal memorandums on this.” (TR 78 L24-25). Miller testifies extensively how its financial records are prepared. They are reliable and accurate. Independent SEC qualified audits of reporting companies are a requirement by the Federal government under the Securities Act of 1934. Public companies like Enron, World Com and Adelphia had such reports filed demonstrating that even audited reports may not be accurate. Under examination Miller offers to explain why “the financial strain right now is far worse than it has ever been.” (TR 87 L3-5). Wilkinson declines the offer. Wilkinson is not prepared to challenge Respondent’s financial capabilities. He represents that he has accountants that can evaluate this information. (TR87 L23-27). The Court gives Petitioner time “to examine the financial records of this Company and have an expert either present a report or testify.” (TR88 L12-16).

Respondent asks the Court to review Miller’s redirect examination at TR 92 L3-28 and TR 93 L1-18. He testifies about the current financial position, gold inventory and extends his “open arms invitation to the government to bring qualified accounting people to examine all of its books and all of its records.”

Petitioner selected Allen Keith Watson to review Respondent’s financial exhibits and to declare an evaluation. Respondent objects to Watson’s declaration. He is not qualified or capable to perform as a financial expert witness. He has very limited background and experience in financial due diligence and no academic education in finances or business. He never contacted Respondent and made no effort to obtain readily available financial data. He earned a Bachelor of Science degree in Engineering (type of engineering undeclared). Working for MSHA for thirty years does not qualify his financial expertise nor does his assertion that he reviewed half a dozen finances of six mines. Petitioner failed to qualify what type of business structure, size, sophistication or other significant and relevant information about these six mines. His limited experiences in this area are insufficient to qualify him as a financial expert. Verifications of any other background, experiences or training were omitted.

Watson declares under penalty of perjury that, “I have reviewed the above documents but have no way of knowing whether they are accurate.” (Point 5). This is an irresponsible and shameful declaration in a matter so critical as taking someone’s money. With even an elementary effort he could have gained an understanding of the exhibits. There were many ways to check the accuracy of the exhibits. Wilkinson has the duty to discuss the issues with his expert in order to gain an accurate understanding of Respondent’s financial position. He knows the Company has been in business for decades and has filed reports with a serious Federal financial agency and that these reports were independently audited until last year. He knows about an Annual Report, a 10-K form and a 10-Q form. It is reasonable that he discussed this with his expert. Miller testifies how Petitioner can access current and audited financial records, “all its (Respondent’s) records much of which is available at one punch of a button at the SEC.” (TR 92 L26-27) Anyone posing as a financial expert for reviewing the records of a public company would know this. Apparently, Watson did not or chose to ignore it in his limited quest for accuracy.

Watson acknowledges that he reviewed the Annual Report 2002. Its balance sheet has comparisons for 2002 and 2001. The 2001 figures were audited by an independent SEC qualified accounting firm. A financial expert would know this and be able to accurately rely on and evaluate the records even though the 2002 figures were not. Side by side comparisons reveal the meat of Respondent’s financial situation. Additional verification as to accuracy could always be obtained by reviewing the 2000 balance sheet (easy to get). Experts know the differences between current assets and non current assets and current liabilities and long-term liabilities. Watson does not. He declares, “If any asset were encumbered by liens or other means, the financial records should reflect this.” This is not true and not a requirement or practice of industry standards.

Respondent offers the following comparison of the balance sheets of year 2001 and 2002 as contained in its exhibit:

1. Available cash reduced from $23,469 to zero

2. Total current assets shrink by $143,788

3. Total current liabilities increase by $136,021.

Petitioner’s financial expert is not qualified as an expert. Even if he were qualified, his evaluation fails to address minimum acceptance in the financial and accounting industry. Petitioner had ample time from October 15, 2003 to December 10, 2003, to conduct its financial review. Watson made no effort to enlist the offered cooperation and participation of Respondent. He made no effort to examine readily available reports and data.

Respondent eliminated and corrected the contested allegations against its miners immediately. Its behavior is exemplary. Its financial condition was not an inhibitor in doing so; however any further monetary fines suggested by Petitioner are unreasonable and punitive and are not in the general public best interest or the miners at the Sixteen to One mine or the industry that MSHA is authorized to protect. Respondent asks the Court to extinguish all the citations contested in the hearing.




Michael M. Miller


Original Sixteen to One Mine, Inc.

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