Original Sixteen to One Mine, Inc.

Petition for Review

The system in America of "Administrative Law Judgement" is seriously flawed.

 

I share with you a recent example filed October 4, 2002. Let me know if you want more information. Our company is under attack and you need to know because this practice is out of control and undermines our securities.

 

MICHAEL M. MILLER, In pro per

President & CEO

ORIGINAL SIXTEEN TO ONE MINE, INC.

527 Miners Street

Post Office Box 909

Alleghany, California 95910

Telephone (530) 287-3223

 

 

 

 

UNITED STATES OF AMERICA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

WASHINGTON, D.C.

 

 

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner, v.ORIGINAL SIXTEEN TO ONE MINE, INCORPORATED, Respondent ))))))))))))) CIVIL PENALTY PROCEEDINGDOCKET NO.: WEST 2001-61-M A.C. No. 04-01299-05541Name of Mine: Original Sixteen to One

 

 

PETITION FOR REVIEW

 

Background

 

A hearing was held in Nevada City, California, on April 23rd and 24th, 2002. The Decision of Administrative Law Judge Cetti of the Federal Mine Safety and Health Review Commission was issued on September 4th, 2002. Our position that the language and intent of the Act (the Law promulgates standards 30 CFR 57.16005 and 30 CFR 57.12032) pre-empts the legitimacy of inspector Weisbeck’s theory of potential harm to miners and the subsequent acknowledgement of his justification by Judge Cetti. Additional authority for our opinion is found in the MSHA Policy Manual, which according to Federal testimony the Judge is required to follow. The Act, Section 101 (i) rules should be promulgated to serve the objective of this Act. Section 2 (e) the operators. . . . with the assistance of the miners have the primary responsibility to prevent the existence of such conditions and practices.

Our position that the intent of the Act was overlooked remains unchanged; we do not accept the Administrative Law Judge’s (ALJ) decision and are petitioning for review of all Citations.

The Federal Mine Safety and Health Act of 1977 (the “Act”) is site specific. The administrative Law Judge was unfamiliar with hardrock mining, this specific mine and the unique geological nature of this mine. His decision overvalued the opinions of the inspector versus the opinions and statements of the miners.

 

Specifics addressing the decision rendered on each citation follow:

 

Citation No. 7987875

 

This citation alleges that an ore chute that had been in existence and inspected quarterly by MSHA agents over a decade was not conspicuously marked with warning devices.

 

Respondent repeatedly testified that an electric light shining on the chute met the standard. In addition flagging was present. Unlike approximately fifty prior inspections, Agent Weisbeck failed to recognize the light as a warning device. Weisbeck had no specific training in ore chutes (P7, L23). The August 15, 2000 inspection was Weisbeck’s first underground inspection. His allegation occurred moments after his first experience underground in the mine. “In the start of the inspection” (P13, L14).

 

Weisbeck testifies that items of high illumination are an industry-accepted method for marking chutes. Weisbeck answers “No” to, “Do you remember, was the ore chute illuminated?” (P112, L 5). Yet, speculates (P137, L15) that a light would not satisfy the standard.

Jonathan Farrell testimony (P273) factually represents the conditions at the mine.

 

Citation No. 7987876

 

This citation alleges that a horizontal crack near the workplace was ignored as a potential threat to miners. Weisbeck supports his judgment with incredible testimony. He discounts experience (his own in general and specifically within the Sixteen to One Mine) by calling long time experience with ground support in the Sixteen to One mine a disadvantage (P138, L19). Under Weisbeck’s qualification testimony he states, “In the early stages it’s not real – when you’re learning to mine in the early stages, its - you’re looking at it like its all hazardous, but you become somewhat comfortable to a point where you see it a lot. So you’re being taught and you learn from experience when things have a tendency to fail in areas where ground may relieve itself (P10, L20). Respondent witnesses have over eighty-years (80) of experience at the Sixteen to One Mine or mines nearby. Weisbeck had two (2) hours. Weisbeck deals in potentials (P36, L5; P37, L11; P33, L11; P40, L19; P43, L8). Weisbeck qualifies his judgment, “could possibly potentially be.” (P38, L13). Respondent’s witnesses evaluate the situation in real terms of which potential is one of many factors.

 

Petitioner qualifies Weisbeck that he is “not an expert on the types of rock in this area” (P69, L15). And, “No, he’s not an expert on rock. That’s why we have a geologist” (P70, L4).

 

Question to Weisbeck, “So, experience on the job is a key component to understanding rock mechanics?” Answer: “For me it was, yes.” (P71, L23).

 

This is the situation throughout the hearing. Petitioner’s witnesses have little or no experience to understand and evaluate the Sixteen to One geology and mining practices. Another reason to discredit Weisbeck can be found on P106, L21 to P107 L1-8. Two strikes for Weisbeck. He is a fresh graduate from the academy with no prior experience judging real situations underground. Another reason to discredit Weisbeck is his refusal to comply with MSHA Policy (P108, L24).

 

Citation No. 7987877 incorporates most of the points briefed in Citation No. 7987876. Paul Tyrna is a geologist (P174, L6) who has visited only one mine in the Sierra Nevada Mountains of California or the Sixteen to One Mine (P168, L24). He recognizes its uniqueness (P164, L19 to P165, L1). His background in Chicago is “not in the least” similar to the geology in California (P171, L23).

 

Raymond Wittkopp is a former University of California professor and publisher of geological articles about the Alleghany district with years of underground experience at the Sixteen to One Mine. His testimony describes the ground in real life terms. He is articulate and credible.

 

Billy Joe Van Meter contradicts Weisbeck, who said he introduced himself to the miners (P205, L11 & L17). Weisbeck’s time in the heading was very brief (P206 & 207). Van Meter examined the crack in the work area (P211, L11). The crack posed no threat (P211, L16 & P211, L18). Weisbeck’s judgment would place a miner in a hazardous position to test a potential threat that could not hurt a miner working in the work place if the rock broke free (P211, L18). “It was too unsafe to actually go out there and inspect it. But where he’s showing the crack back here, you can not reach that without climbing up on this rock fall off the track behind” (P212, L5). The crack that so excited Weisbeck and was believed crucial to Cetti posed no danger to a miner (P212, L14-24). “They don’t fall uphill. I’ve never seen one fall uphill.” Van Meter’s testimony is lucid throughout. He has 25 years of experience in the district.

 

The judge also asks, “there would be no one over there?” “No way, no one over there” (P219, L16). No miners were in danger because of the crack. The ground is solid. I started my career 100 feet from this exact area in 1976. And the area is exactly the same today as it was in 1976 (P220, L12). Van Meter testifies about timber on pages 222, 223 & 225. The judge asks a specific question (P225, L13), “Did it appear that it was bearing any weight when you knocked it down?” Answer, “No, no weight at all.”

 

Cetti thinks field notes are irrelevant (P99, L1).

 

The commission must evaluate the statement read into the hearing on P144–145 as relevant when compared to petitioners witnesses who alleged dereliction of miner professionalism based upon one short visit to the mine. Petitioner objected on three occasions to its admittance prior to its admittance.

 

Respondent quickly recognized the ALJ bias. Cetti even testified that he wanted the hearing over so he could drive to Sacramento to see his family. This hearing is an embarrassment to the mining profession of America and the fine upstanding MSHA employees who sincerely work to increase the safety of America’s most precious resource (the Act), its miners.

 

Review the discussion regarding Petitioners witness Joe Cybulski (P177–179). Petitioner’s amended witness list dated December 19, 2001, includes Joseph Cybulski, P.E., MSHA mining engineer. Petitioner failed to produce this material witness for the Respondent, which flaws the entire hearing.

 

Cetti displays his ability to grasp the physical situation with the mine geology (P209, L9-14).

 

Cetti ignores the law of mining according to MSHA. The operators are the ones that set the policies and the MSHA people are the ones that see whether our policies are being carried forth (P221, L15).

 

Citation No. 798787

 

The cylinder was empty, against a wall, in an area of infrequent travel and did not have torches attached. It posed no threat to a miner and was secure where it was placed. Testimony from respondent is on pages 317-320, which substantiates respondent’s position. It is an insult to the mining profession to speculate that this empty cylinder at this location could “result in severe bruising and possibly break a bone in a persons foot” as Judge Cetti relates as his justification.

 

Citation No. 7987883

 

For a citation to prevail, a condition is injury to a miner. Weisbeck perjured himself or his memory at the time of the hearing failed. The citation was abated in his presence by Farrell. Respondent acted properly when he discovered the half displaced plate. This was not an active work place.

 

Jurisdiction

 

Is the Sixteen to One a mine or not? Commerce is the basis for compliance to the Act. An exploration operation falls outside the authority of U.S. Government. There is only one United States Federal government. There is only one Federal Jurisdictional body of laws that citizens, residents or others recognize. The issue is simply consistency of enforcement, and consideration the Commission recognizes. The impact of dual definitions regarding such a simple concept as what is or is not a mine, is destructive. Once the discrepancies in definitions become known to the two agencies in conflict, the agencies must respond to eliminate the inconsistencies. Each agency has its fiduciary responsibility to the beneficiaries of federal government, the American people. Such a discussion at the commission level should be offered to the beneficiaries of the Act, or the miners of the United States of America.

 

The Administrative Law Judge failed to recognize the financial situation of respondent in assessing a total of civil penalties of $651.00. The demands of these penalties are unsupported by the U.S. constitution. The company is insolvent.

 

Federal employee Isabella Del Santo failed in her duties to her primary clients; however this opinion may not embrace the views of her secondary client, MSHA. The reason for her prosecution is to preserve and protect the safety of the American miner because such protection is crucial to the American people and our country. Respondent refrains from enumerating all phrases she employed to sway the judge but the transcript reveals her professional conduct, which is contrary to her sworn oath of compliance to California State bar rules of conduct.

 

Conclusion

 

To hear patiently, to weigh deliberately and dispassionately, and to decide impartially; these are the chief duties of a Judge. Administrative Law Judge, Judge Cetti failed in these duties with regard to the testimony recorded in the transcript.

 

Cetti gives universal approval to Petitioners use of, “Objection, deliberative process, and privileged.”

 

Judge Cetti’s decision is not supported by substantial evidence. His decision is contrary to law and to the rules under which MSHA operates. He exercises unwarranted bias for the inspector’s experience, training and judgment. He exercises unwarranted prejudice against all witnesses for the respondent, whose experience, training and judgment regarding the Sixteen to One Mine overwhelmingly exceeds those of the inspectors. He overlooked a serious procedural responsibility when petitioner failed to produce one of its three witnesses.

Judge Cetti affirmed Weisbeck’s breach in his responsibility as a MSHA inspector; to wit, Section 104 (d)(1)/(e)(1) which includes but is not limited to the guidelines: “the inspector must use background, training and experience together with an evaluation of actual circumstances surrounding the violation to arrive to find that an injury or illness is only possible.”

 

Unlike most transcripts this transcript must be studied for its collective value. Respondent requests additional time, should the Commission requires a summary of the transcript; however, respondent believes that an unbiased and impartial study of the transcript substantiates its position to overturn all of Judge Cetti’s opinions.

 

Thus, a Review of the Decision of September 4, 2002, is requested.

 

A. Conclusion of material fact is not supported by substantial evidence.

B. A necessary legal conclusion is erroneous.

C. A substantial question of law, policy or discretion is involved.

D. A prejudicial error of procedure was committed.

 

 

Respectfully submitted,

 

Original Sixteen to One Mine, Inc.

 

 

Michael M. Miller

President

 

Distribution:

Christopher B. Wilkinson, Esq.

 

Michael Miller

President/CEO

 
© 2017 Original Sixteen to One Mine, Inc.