Navasota Mining Company Incorporated

Plain-English summary

At Navasota Mining Company's Gibbons Creek Mine, MSHA first cited a hazardous side-clearance condition on a haul road after a collision that resulted in fatal injuries to a coal truck operator. MSHA later terminated that citation after corrective action, then attempted to modify it more than 13 months later to allege a different violation involving standardized traffic rules and warning signs. Judge Michael A. Lasher ruled that the terminated citation could not be changed to charge a materially different violation. He vacated the two citations at issue, found Navasota's contest meritorious, denied MSHA's motion to modify, and dismissed the civil penalty docket.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.1600(c) and 30 C.F.R. § 77.1600(b)
• Outcome: Modification No. 3242222-03, Citation No. 3242221, and Citation No. 3242222 were vacated. Docket No. CENT 91-101 was dismissed.
• Key point: After a citation has been abated and terminated, MSHA may not use a modification to materially change the nature or description of the violation charged.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. NAVASOTA MINING
DDATE:
19920211
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
Colonnade Center
Room 280, 1244 Speer Boulevard
Denver, CO 80204

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 91-101
PETITIONER A.C. No. 41-02847-03525
v.
Gibbons Creek Mine
NAVASOTA MINING COMPANY
INCORPORATED,
RESPONDENT

NAVASOTA MINING COMPANY CONTEST PROCEEDING
INCORPORATED,
CONTESTANT Docket No. CENT 92-21-R
v. Citation No. 32422222-03; 9/28/91

SECRETARY OF LABOR, Gibbons Creek Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Mine I.D. 41-02847
RESPONDENT

                                  DECISION

Before: Judge Lasher

 These two proceedings (one penalty and one review case) were

consolidated for processing by my oral order on December 4, 1991.

 In the penalty docket, the Secretary of Labor (herein

"MSHA") originally sought assessment of penalties for two alleged
violations described in two Citations, Nos. 3242221 and 3242222.

I. Citation No. 324221.

   In its Motion to Amend Complaint Proposing Penalty
   filed October 24, 1991, MSHA moved to withdraw this
   Citation, the grounds for which motion, I conclude,
   being that the violation did not occur. Accordingly,
   MSHA's motion is granted and Citation No. 3242221 will
   be vacated as reflected in my order at the end of this
   decision.

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II. Citation No. 3242222
A. Chronology

      This Section 104(a) "Significant and Substantial"
      Citation was issued on August 20, 1990, by MSHA
      Inspector Gerald Stephen, alleging a violation of 30
      C.F.R. § 77.1600 (c), more particularly specified
      subsequently herein. It was "Terminated" on August 22,
      1990, by Inspector Stephen after Navasota took
      corrective action to abate the allegedly violative
      condition originally cited. On August 30, 1990, a first
      Modification issued to change the date of the alleged
      violation from "8-18-90" to "8-17-90." The second
      modification, numbered 3242222-03, which is the subject
      of the dispute here, was issued by Inspector Stephen on
      September 30, 1991, changing the standard allegedly
      infracted from 77.1600(c) to 77.1600(b).

B. Nature of the Modification

      The alleged violation, as originally charged to be an

infraction of 30 C.F.R. § 77.1600(c) (Footnote 1), described such as
follows:
Side clearance of the A-1 haul road proceeding to
and exiting from the truck dump is hazardous to
mine workers and such area was not adequately and
conspicuously marked and warning devices were not
adequately installed to insure the safety of the
workers. On 8-18-90, two Watco CH-120 haul trucks
collided at a location approximately one-fifth
mile south of the truck dump on the A-1 haul road
after failing to complete a lane change, resulting
in fatal injuries to a coal truck operator.

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Abatement of this alleged violation, as described in the
Termination issued on August 22, 1990, was achieved as follows:

           Stop signs and warning devices such as location
           markers and safety cones were installed as
           required. Side clearance of the road was improved
           by reducing the topsoil stockpile height to
           provide better visibility. Traffic patterns were
           modified to prohibit lane changes.

      After the first modification on August 30, 1990,
      described above, the second modification (3242222-03)
      was issued 13 months later, changing the violation
      charged to one of 30 C.F.R. § 77.1600(b) (Footnote 2),
      to wit:

           After additional review of this investigation,
           this Citation is modified as follows:
           1. Change Section 1 - Violation Data, Item No. 8,
           condition or practice to: Standardized traffic
           rules, signals, and warning signs were not posted
           at a location approximately one-fifth mile south
           of the truck dump, on the A-1 haul road where a
           lane change had been permitted by management. A
           fatal powered haulage accident occurred at this
           location, resulting in fatal injuries to Gloria
           Smith, a coal haulage truck operator.
           2. Change Item 9.c. Part/Section of Title 30
           C.F.R. to: 77-1600(b).

 In addition to its contention that a terminated citation

cannot be subsequently modified, Navasota also contends, inter
alia, that:

      a. The Secretary cannot modify unilaterally or
      otherwise Citation No. 3242222 (which was abated,
      terminated, and contested before the Commission)

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by changing, more than 13 months after its issuance, the
condition or practice allegedly constituting a violation from an
alleged failure to provide adequate side clearance on a haul road
to an alleged failure to post standardized traffic rules, a
condition or practice completely different in nature from the
condition or practice described in the original citation, and

      b. Modification No. 3242222-03 was not issued with
      reasonable promptness and Navasota is prejudiced by its
      issuance.

 It is preliminarily noted that MSHA has conceded that a

violation of 30 C.F.R. § 77.1600(c) did not occur. (Footnote 3)
This takes care of the original charge in the original Citation, No.
3242222, and permits focusing on the remaining charge of
violation, that contained in the modification, No. 3242222-03. Is
a charge of violation of a new safety standard containing a
description of a different violative practice or condition
properly brought by modification of the original citation after
such has been abated and terminated?

 The "Termination" in question was achieved here by the MSHA

inspector's completion of MSHA Form 7000-3a (Mar. 85 revised) on
August 22, 1990, and his checking on Line 8 C thereof (from a
choice of "Vacated," "Terminated" and "Modified")(Footnote 4) that the

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original Citation was being "Terminated." On the form, the
Inspector indicated that the justification for the action was the
action taken taken by the mine operator to abate the conditions
and practices initially alleged to be an infraction.

 Since the "Termination" does not vacate (or modify) the

Citation, what then does a termination accomplish? Its clearest
purposes and effects are:

 (a)    MSHA's acknowledgement that the mine operator has
        satisfactorily abated the violation charged;

 (b)    an ending of the mine operator's duty to engage in
        further abatement,

 (c)    a termination of the mine operator's exposure to
       "failure to abate" enforcement action under Section
       104(b) of the Act.

 Most certainly, allowing modification of a Citation to

change the safety standard and the description of the violation
would cancel "(a) and revive the mine operator's duties amd
exposures under "(b)" and "(c)."

 In any event, and as Navasota points out, I have previously

ruled on the issue presented here in a prior matter which is
presently on Commission review. (Footnote 5) In my Order Denying Motion
for Partial Summary Judgment (January 22, 1991) therein, it was
held that ". . . a Citation can be modified after its termination
to alter or amend allegations relating to penalty assessment
factors but not to materially change the nature of the violation
charged, or the description of the violation charged . . . ."
Since this Order was not published, a copy thereof is attached as
Attachment "A" hereto.

 That ruling is found applicable to the situation in the

instant proceeding, where the safety standard itself was
unilaterally changed to charge a different violation, and the
description of the alleged infraction also was unilaterally
modified after abatement and termination to indicate a violation
of a different nature than that originally charged.

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Navasota's position6, replete with a factual background and
points and authorities, has been reviewed and found meritorious.
It is therefore adopted.7 Since all of MSHA's enforcement
documentation (two citations and one modification) are involved
herein, and the issues raised thereby are resolved favorably to
Navasota, the subsequent order disposes of the two proceedings at
hand.
ORDER

 1. MSHA's motion to modify the original Citation, No.

3242222, is DENIED.

 2. Navasota's contest in Docket No. 92-21-R is found

meritorious and Modification No. 2432222-03 is VACATED.

 3.   Citation No. 3242221 is VACATED.

 4.   Citation No. 3242222 is VACATED.

 5.   Docket No. CENT 91-101 is DISMISSED.


                              Michael A. Lasher, Jr.
                              Administrative Law Judge

Footnotes start here:-

 1. This standard, under the general heading "Loading and

Haulage" provides:

      (c) Where side or overhead clearances on any haulage

road or at any loading or dumping location at the mine are
hazardous to mine workers, such areas shall be conspicuously
marked and warning devices shall be installed when necessary to
insure the safety of the workers.

 2. 1600(b) provides:
      Traffic rules, signals, and warning signs shall be

standardized at each mine and posted.

 3. At page 2 of its Motion to Amend Complaint, it states "At

this time, the Secretary will not allege that side or overhead
clearances on the haulage road which was the subject of the
investigation were hazardous. More specifically, on page 2 of its
Amended Complaint, MSHA states:

      It does not appear that a violation of 30 C.F.R.

1600(c) occurred; however, the Secretary believes that the
regulation which should have been cited is 30 C.F.R. § 77.1600(b),
which deals with traffic rules, signals, and warning signs.

 4. In addition to these options, including the noteworthy

alternative of modification, MSHA also at this time could have
proceeded to issue other newly numbered Citations for any
additional violations it believed were committed.

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 5. Cyprus Tonopah Mining Corp., 13 FMSHRC 1523, 1527

(September 1991), review granted, November 1, 1991.

 6. Set forth in its "Opposition to Secretary's Motion to

Amend Complaint and Navasota's Motion to Dismiss."

 7. The posture of this matter as framed by the Motion,

Opposition, admissions, and pleadings, makes possible final
trial-level determination of the issues by decision rather than
by an order denying MSHA's motion.