Secretary of Labor v. Premier Elkhorn Coal Company

Plain-English summary

A coal haulage truck driver was killed on December 12, 2009 when he lost control of a loaded truck descending the haul road at Premier Elkhorn's PE Southern Pike Co. mine. MSHA issued Premier Elkhorn two citations: one under 30 C.F.R. § 77.1607(b) for failure to keep full control of moving mobile equipment, alleged as an unwarrantable failure because the company knew trucks were routinely overloaded, and one under 30 C.F.R. § 77.1605(b) for inadequate brakes. Judge Jeffrey Tureck vacated both after a hearing. On review the Commission affirmed the brake citation's vacatur but reversed on the control citation, holding under Clintwood Elkhorn that the Secretary need only show the driver lost control, not that overloading caused it, and it remanded for a penalty. The Commission majority also deleted the unwarrantable failure finding. On remand, Judge Jerold Feldman approved the parties' settlement dropping the proposed penalty from $70,000 to $7,500. He noted his own disagreement with the majority, siding with Commissioner Cohen's dissent that weight tickets and the manufacturer's ratings supported an inference of overloading, but said he was constrained by the Commission's ruling. Premier Elkhorn was ordered to pay $7,500 within 30 days, after which the case is dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1607(b) and 30 C.F.R. § 77.1605(b)
• Outcome: Settlement approved on remand; the penalty for Citation No. 8230316 was reduced from $70,000 to $7,500 and the case dismissed on payment.
• Key point: When the Commission deletes an unwarrantable failure designation, the judge on remand is bound by that ruling in assessing the penalty even if he reads the record differently.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington , DC 20004

October 26, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

PREMIER ELKHORN COAL COMPANY,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2011-827

A.C. No. 15-17360-248539

Mine: PE Southern Pike Co.

DECISION
APPROVING SETTLEMENT ON REMAND

AND

ORDER TO PAY

Before:            Judge Feldman

This civil penalty proceeding involves two
citations issued to Premier Elkhorn Coal Company (“Premier”) in connection with
a fatal coal truck accident. Citation No. 8230316 alleges a violation of 30
C.F.R. § 77.1607(b), which requires that “[m]obile equipment operators shall
have full control of the equipment while it is in motion.” Specifically,
Citation No. 8230316 provides:

A fatal accident
occurred on December 12, 2009, when the driver of the 2006 red International
Paystar coal haulage truck, owned by Trivette Trucking (Q080), VIN 1HTXHAPTX63J233337,
failed to maintain control of the loaded truck as it was descending the mine
haul road. Overloading of the truck was a factor in the driver losing control. The
estimated weight of the truck was 37,600 pounds over the GVWR recommended by
the manufacturer. Premier Elkhorn was aware that the trucks were routinely
overloaded and did nothing to stop this practice. This truck operates on mine
roads as well as public highways. This condition is an unwarrantable failure to
comply with a mandatory safety standard.

Relatedly, Citation No. 8230317
alleges a violation of 30 C.F.R. § 77.1605(b), which requires that “[m]obile
equipment shall be equipped with adequate brakes, and all trucks and front-end
loaders shall also be equipped with parking brakes.” Specifically, Citation No.
8230317 provides:

The red
International Paystar model 5600I haul truck, Vehicle ID 1HTXHAPTX63J233337,
was not equipped with adequate brakes. This truck was involved in a fatal
accident on December 12, 2009. The operator of this mine did not assure that
the above listed truck being operated by a contractor was equipped with
adequate brakes. A mechanical evaluation conducted during the fatal

accident
investigation revealed the following conditions were present: 1. Both the left
and right side brake drums on the steering axel had deposits of dried grease on
the drum lining friction surface. These conditions compromise the braking
activity. 2. The right side brake on the rear tandem axel did not function when
tested. 3. Wear on the brake drums in excess of maximum allowable diameter was
found on the right front tandem and both the left and right side on the rear
tandems. 4. Bluing was found on the right side drum on the front tandem and the
left side drum on the rear axle. Bluing indicates excessive heat. These
conditions compromise the braking capacity. This truck operates on mine roads
as well as public highways.

I.                   
Procedural History

After a hearing on the merits, Administrative
Law Judge Jeffrey Tureck vacated both citations, finding that the Secretary
failed to demonstrate that the subject haul truck was hauling an unsafe amount
of coal, and that the accident was more likely attributable to a steering
problem that caused the brakes and steering to simultaneously fail. 35 FMSHRC
150, 164 (Jan. 2013) (ALJ). The Secretary filed a petition for discretionary
review, which was granted by the Commission. [1]

On review, regarding Citation No. 8230317, the
Commission concluded that Judge Tureck’s finding that the condition of the haul
truck’s brakes did not cause the fatal accident was supported by substantial
evidence. As such, the Commission affirmed the vacation of Citation No.
8230317. 38 FMSHRC 1587, 1595 (July 2016).

However, the Commission reversed
Judge Tureck’s vacation of Citation No. 8230316 based on his finding that Premier
was not responsible for loss of control of the truck because the Secretary
failed to establish that the truck was loaded in excess of the manufacturer’s gross
vehicle weight rating. Id. at 1593. In so doing, the Commission relied
on Clintwood Elkhorn Mining Co. , 35 FMSHRC 365, 370 (Feb. 2013), which
held that the Secretary is not required to prove “a causal or contributing
factor for the loss of control” to establish a violation of section 77.1607(b),
but rather only must demonstrate that the truck driver lost control of his
vehicle.   38 FMSHRC at 1591. Here, the Commission determined that the truck
driver lost control of his vehicle and that this violation, given its fatal
consequences, was properly designated as significant and substantial (S&S).
Id. at 1591-92.

The Commission’s Clintwood Elkhorn
decision narrowly held that the Secretary did not have to demonstrate that a
truck was overloaded to establish the fact of a violation of section
77.1607(b). However, whether such a truck is overloaded is relevant, if not
determinative, in resolving whether the accident is attributable to an
unwarrantable failure. Here, as the subject truck overturned, the Mine Safety
and Health Administration (“MSHA”) could not determine how much coal the truck
was carrying prior to the accident. Id. at 1597 (Commissioner Cohen,
dissenting). However, the inability to determine the load of an overturned
truck, as a consequence of a truck operator’s loss of control, should not inure
to the benefit of the mine operator.

The Commission’s majority opinion
concluded that the evidence that the truck was overloaded is “at best,
circumstantial.” Id. at 1592. The Secretary
may satisfy his burden of proof, with respect to the issue of unwarrantable
failure, by relying on reasonable inferences   drawn from indirect (circumstantial) evidence, provided
that such   inferences   are inherently reasonable and bear a rational connection
between the evidentiary facts and the ultimate fact to be   inferred . Garden   Creek   Pocahontas Co. ,
11 FMSHRC 2148, 2153 (Nov. 1989). I agree with the dissenting opinion of
Commissioner Cohen that the record, consisting of weight tickets showing a
pattern of overloading trucks in close temporal proximity to the accident, and
a relevant manufactures’ truck manual providing relevant gross vehicle weight
ratings, demonstrates that ample circumstantial evidence warrants the inference
that the truck was overloaded. [2]
See 38 FMSHRC at 1590-91. Premier does not deny that overloading a truck
in excess of the gross vehicle weight rating could cause “component failure,
result[ing] in property damage, personal injury, or death.” Id. at 1589.

Nevertheless, the Commission’s
majority decision held that Citation No. 8230316 was not a result of an
unwarrantable failure. Id. at 1592. Consequently, the Commission now has
remanded Citation No. 8230316 for a determination of the appropriate civil
penalty. Id. at 1595.

II.                
  Settlement Agreement

On remand, the parties have now filed
a motion to approve settlement and dismiss this matter. The parties have agreed
on a reduction of the proposed civil penalty for Citation No. 8230316 from
$70,000.00 to $7,500.00, based on the Commission’s deletion of the
unwarrantable failure designation. As noted above, although I believe that
there is significant evidence reflecting that the violation may have been
attributable to an unwarrantable failure,    I am constrained to approve the
parties’ settlement motion given the Commission’s majority decision to the
contrary.

Consistent with the above
discussion, I conclude that the proffered settlement is appropriate under the
criteria set forth in Section 110(i) of the Act. WHEREFORE , the motion
to approve settlement IS GRANTED , and pursuant to the parties’
agreement, Premier Elkhorn Coal Company IS ORDERED to pay the $7,500.00 civil
penalty within 30 days of this Order in satisfaction of the single citation remaining
at issue on remand. [3]
Upon receipt of timely payment, the captioned matter IS DISMISSED .

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of
the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219

Melanie Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick
& True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

/acp     

[1] As Judge Tureck is no longer with the Commission,
this matter was assigned to the undersigned on remand on July 12, 2016.

[2] Although Judge Tureck denied admission of this
documentary evidence, the Commission noted that the judge permitted the
Secretary’s witnesses to testify with respect to the information therein. 38
FMSHRC at 1591 n.10.

[3] Payment should be sent to the Mine Safety and Health Administration,
U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390. Please include the Docket No. and A.C. No. noted in the above
caption on the check.