Black Beauty Coal Company v. Secretary of Labor

Plain-English summary

Black Beauty resolved 32 of 34 citations and orders through settlement or agency vacatur, leaving an accident-site preservation citation and an alleged inadequate on-shift examination for decision. Judge Jerold Feldman held that Black Beauty violated section 50.12 by resuming mining after reporting a roof-fall incident without obtaining MSHA permission, but he reduced negligence to low and assessed $500. He vacated the section 75.362(b) order because the cited midnight shift was a non-production maintenance shift, so a belt-haulage on-shift examination was not required, and the Secretary had not tried a different production-shift theory. The judge approved the remaining settlements and ordered total penalties of $224,855. The Commission later vacated and remanded the accident-site ruling, affirmed the examination-order vacatur, and the remanded citation was ultimately settled.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.12 and 75.362(b)
• Outcome: The accident-site citation was affirmed at $500, the examination order was vacated, settlements were approved, and total penalties were $224,855.
• Subsequent review: The Commission vacated and remanded the accident-site ruling but affirmed the examination-order vacatur in lake-2008-378-r-commission.
• Key point: The ALJ treated reporting as triggering site-preservation duties, but the Commission later required proof that the event was legally an accident.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

February 10, 2012

BLACK BEAUTY COAL COMPANY, 

Contestant 

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent 

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

BLACK BEAUTY COAL COMPANY,  

Respondent   

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CONTEST PROCEEDINGS

Docket No. LAKE 2008-378-R

Order No. 6672656; 04/05/2008

Docket No. LAKE 2008-379-R

Citation No. 6672658; 04/08/2008 

Docket No. LAKE 2008-380-R

Citation No. 6672659; 04/08/2008

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2008-643

A.C. No. 12-02010-160151

Docket No. LAKE 2009-72

A.C. No. 12-02010-165822 

Air Quality No. 1

DECISION

Appearances:    Matthew M. Linton, Esq., Office of the Solicitor, U.S. Department of Labor,
MSHA, Denver, Colorado, for the Petitioner;  Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,  for the Respondent.

Before:     Judge Feldman

These consolidated contest and civil penalty proceedings concern Petitions for the
Assessment of Civil Penalty filed pursuant to section 110(a) of the Federal Mine Safety and
Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C. § 820(a), by the Secretary of Labor
(“the Secretary”) against the respondent, Black Beauty Coal Company (“Black Beauty”). The petitions sought to impose a total civil penalty of $377,931.00 against Black Beauty for 34 alleged violations of Part 75 of the Secretary’s mandatory safety regulations governing
underground coal mines. 30 C.F.R. Part 75. These matters were heard on July 12 through July 14, 2011, in Evansville, Indiana. The parties’ post-hearing briefs are of record. Prior to the
hearing the parties settled 29 of the 34 citations and orders in issue. The parties settled three
additional citations as a consequence of settlement conferences after the presentation of evidence
related to these citations at the hearing.

This Decision formalizes a bench decision that granted the Secretary’s motion for
summary decision with respect to Citation No. 6672658 in Docket No. LAKE 2008-643 that
concerns an alleged non-significant and substantial (non-S&S) violation 30 C.F.R. § 50.12.

Citation No. 6672658 was issued as a consequence of Black Beauty’s failure to obtain the
permission of the Mine Safety and Health Administration (MSHA) District Manager before
resuming normal mining operations after a mine accident was reported. This Decision also
disposes of remaining Order No. 6681047 in Docket No. LAKE 2009-72 issued for an alleged
inadequate on-shift examination conducted during a midnight maintenance shift that the
Secretary attributes to an unwarrantable failure.

I. Settlement Agreements

a. Docket No. LAKE 2008-643

Docket No. LAKE 2008-643 contains 20 citations/orders for a total proposed civil penalty of $207,516.00. Prior to the hearing, the parties agreed to settle 18 of the
citations/orders for a total civil penalty of $143,493.00. The settlement terms are of record and were approved at the hearing. (Joint Ex. 1). At the hearing the Secretary agreed to vacate
Citation No. 6672659. As discussed below, the bench decision imposed a civil penalty of
$500.00 for remaining Citation No. 6672658. Consequently, the total civil penalty assessed in
Docket No. LAKE 2008-643 is $143,993.00.

b. Docket No. LAKE 2009-72

Docket No. LAKE 2009-72 contains 14 citations/orders for a total proposed civil penalty of $170,415.00. Prior to the hearing, the parties agreed to settle 11 of the
citations/orders for a total civil penalty of $59,862.00. The settlement terms are of record and were approved at the hearing. (Joint Ex. 1). At the hearing, the parties agreed to modify

Order No. 6672674 to a 104(a) citation to reflect that the cited violation was not attributable to an unwarrantable failure. Black Beauty agreed to pay a civil penalty of $7,000.00 for

Citation No. 6672674. At trial, the parties also agreed to settle Order No. 6676919 by deleting
the S&S designation. Black Beauty agreed to pay a reduced civil penalty of $14,000.00 for Order No. 6676919. Remaining Order No. 6681047, adjudicated in this Decision, shall be
vacated. Thus, the total civil penalty assessed in Docket No. LAKE 2009-72 is $80,862.00.

II. Bench Decision – Citation No. 6672658

In Docket No. LAKE 2008-643

At approximately 8:05 p.m. on Sunday, April 5, 2008, roof bolter Harold (“Jesse”)
Driskill was struck by a fallen slab of rock measuring seven feet long by 47 inches wide.

The fallen rock was approximately nine inches thick. The rock pinned Driskill against the mine
floor and the roof bolter. The fallen material hit Driskill in the head and slid down his body.
Driskill stood up with assistance, walked to a mantrip, and was taken to the surface where he was transported to a hospital by ambulance. (Gov. Exs. 15, 18, 19).

Section 50.10(b) of the Secretary’s regulations requires a mine operator to immediately
notify MSHA, within 15 minutes, once the mine operator knows of an accident that involved an
injury that had a reasonable potential to cause death. 30 C.F.R. § 50.10. Black Beauty timely
reported the accident on the MSHA telephone hotline at 8:23 p.m., shortly after the occurrence of
the accident. The accident was reported before the nature and extent of Driskill’s injuries were
known.

Ron Stalhut, the MSHA Field Office Supervisor in Vincennes, Indiana, learned of the
accident at approximately 9:41 p.m. at which time MSHA official Michael Rennie issued a
verbal 103(k) order that prohibited Black Beauty from resuming normal mining operations at the
accident site.

At that time, Stalhut dispatched MSHA inspector Sylvester DiLorenzo for the
purposes of securing the accident site and initiating an accident investigation. DiLorenzo arrived
at the accident site at approximately 10:50 p.m. at which time he determined that normal mining
operations had resumed that had resulted in the alteration of the accident scene.

As a result of DiLorenzo’s observations, Citation No. 6672658 was issued citing a violation of section 50.12 that requires preservation of evidence at an accident site.
Specifically section 50.12 provides:

Unless granted permission by a MSHA District Manager, no operator may alter
an accident site or an accident related area until completion of all investigations
pertaining to the accident except to the extent necessary to rescue or recover an
individual, prevent or eliminate an imminent danger, or prevent destruction of
mining equipment.

30 C.F.R. § 50.12. (Emphasis added).

Under section 50.2 of the Secretary’s regulations the definition, in pertinent part, of
“accident” is “[a]n injury to an individual at a mine which has a reasonable potential to cause
death.” After presentation of the evidence, the Secretary moved for summary decision on the
issue of the fact of the violation of section 50.12. (Tr. 278). This decision formalizes the bench
decision issued at trial:

The circumstances in this case were set in motion by Steve Elliott, the
responsible person designated in Black Beauty’s emergency response plan. Elliott
was required to determine, within 15 minutes of the 8:05 p.m. accident, whether
Driskill’s injuries were life threatening. Erring on the side of caution, without
knowing the extent of Driskill’s injuries, Elliott notified MSHA at 8:23 p.m.
DiLorenzo arrived at the accident site at approximately 10:50 p.m., at which time
normal mining operations had resumed. Terry Courtney, the second shift manager
in charge at the time of the accident, and Rick Carie, acting superintendent,
advised DiLorenzo that information from the hospital reflected that Driskill had
escaped serious injury. Consequently, normal mining operations had resumed. Since Black Beauty resumed mining without the permission of the MSHA District
Manager, DiLorenzo issued Citation No. 6672658, alleging a non-S&S violation of section 50.12.

Medical records in an Indiana Worker’s Compensation Report reflect that
Driskill suffered abrasions to the arm and rib cage. Based on medical advice,
Driskill was cleared to return to work on April 7, 2008, two days following the
accident, without significant physical restrictions. Although Driskill apparently
experienced pain and discomfort, the evidence reflects that his injuries were not
life threatening.

Turning to the fact of the violation, the plain language of section 50.12
prohibits a mine operator from altering an accident site by resuming operations,
unless such permission is granted by the MSHA District Manager. The report of
an accident, rightly or wrongly, is the condition precedent to the application of the
provisions of section 50.12. Having reported an accident, Black Beauty’s
unilateral decision to resume operations constituted a violation of section 50.12.

However, it is a mitigating factor that Black Beauty had correctly
determined that the scene was not an “accident site” in that serious injury was not
sustained. Consequently, the negligence attributable to Black Beauty should be
reduced from the high degree asserted in Citation No. 6672658 to a low degree of
negligence. The Secretary initially proposed a civil penalty of $2,678.00. In view
of the reduction in the negligence, a civil penalty of $500.00 shall be assessed.

(Tr. 308-25).

At the hearing, I requested the parties to address in their briefs whether section 50.12 is a
reporting violation, and if so, whether it could properly be designated as S&S. However, as the
citation did not allege that the citation was S&S, I decline to address this question, which I now
view as moot.

III. Order No. 6681047

In Docket No. LAKE 2009-72

There are two production shifts at Black Beauty’s mine. The day production shift begins at 7:00 a.m. and ends at 3:00 p.m., and the afternoon production shift is from

3:00 p.m. until 11:00 p.m. The remaining shift is the midnight maintenance shift from 11:00 p.m. until 7:00 a.m. (Tr. 85).

During the course of an inspection conducted on the morning of September 11, 2008,
MSHA inspector Glenn Fishback observed what he deemed to be obvious and extensive
accumulations of combustible materials in the form of loose coal, coal fines, and float coal dust,
which were allowed to accumulate along the energized 2 Main East conveyer belt header inby to
the number 48 crosscut. It required approximately 20 employees shoveling each shift and the
application of six 3,500 pound tanks of rock dust for a period of 18 hours to correct the affected
area. As a result of his observations, Fishback issued 104(d)(2) Order No. 6681046 citing a violation of section 75.400 that prohibits the accumulation of combustible materials. (Gov. Ex. 33; Appx. I).

The violation was attributed to an unwarrantable failure.

The cited condition in Order No. 6681046 was designated as unwarrantable based on the extensive nature of the
accumulations,

Black Beauty’s history of section 75.400 violations, and prior meetings with mine management advising that greater cleanup efforts were required. (Gov. Ex. 33;

Appx. I). The disposition of Order No. 6681046 is not in issue in this proceeding.

As a result of the conditions noted in 104(d)(2) Order No. 6681046, Fishback issued
104(d)(2) Order No. 6681047 citing an S&S violation of the on-shift provisions in 30 C.F.R. § 75.362(b) that was attributed to an unwarrantable failure. The Secretary proposes a civil
penalty of $53,858.00. Order No. 6681047 states:

An inadequate onshift examination was conducted for the 2 main East belt
conveyor for the 4:30 AM to 7:30 AM examination on 9/11/2008. Obvious and
extensive accumulations of combustible materials in the form of loose coal, coal fines, and float coal dust were observed by MSHA on this date. The
accumulations of combustible materials were cited today in 104(d)(2) Order No.
6681046. The examination record for the 4:30 AM to 7:30 AM examination of
the 2 Main East belt showed no hazards listed.

(Gov. Ex. 32).

Section 75.362(b) provides:

During each shift that coal is produced, a certified person shall examine for
hazardous conditions along each belt conveyor haulageway where a belt conveyor
is operated. This examination may be conducted at the same time as the preshift
examination of belt conveyors and belt conveyor haulageways, if the examination
is conducted within 3 hours before the oncoming shift.

(Emphasis added).

Addressing the propriety of Order No. 6681047 requires a discussion of the Secretary’s
preshift and on-shift examination requirements. An on-shift examination for hazardous
conditions in each section where persons work must be conducted at least once during each shift. 30 C.F.R. § 75.362(a)(1). During production shifts, on-shift examinations must also be performed for hazardous conditions along each belt conveyor haulageway where a belt is
operated. 30 C.F.R. § 75.362(b).

A preshift examination for hazardous conditions must be performed within three hours of the beginning of the subsequent eight hour shift. 30 C.F.R. § 75.360(a)(1). The preshift
examination requires examination of roadways, travelways and track haulageways where persons
will be working or traveling during the oncoming shift. 30 C.F.R. § 75.360(b)(1). On-shift and
preshift examinations may be conducted at the same time if the examination occurs within three hours before the oncoming shift. Thus, an on-shift examination of belt haulageways during
a production shift may be conducted at the same time as a preshift examination for the upcoming
maintenance shift provided that examinations are conducted within three hours of the beginning
of the maintenance shift. 30 C.F.R. § 75.362(b).

Order No. 6681047 alleges that: “[a]n inadequate onshift examination was conducted for the 2 main East belt conveyor for the 4:30 AM to 7:30 AM [midnight maintenance shift]
examination on 9/11/2008.” Although the on-shift provisions of section 75.362 require that, at
least once during each shift, examinations for hazardous conditions must be conducted in each
section where anyone is assigned to work during that shift, an on-shift examination of belt entries
is not required during non-production shifts. 30 C.F.R. § 75.362(b). Thus, Black Beauty asserts
that an on-shift examination of the 2 main East belt conveyor during the September 11, 2008,
midnight maintenance shift was not conducted because it was not required.

Rather, the most relevant examination of the belt haulageway was during the on-shift/preshift examination during the afternoon production shift on September 10, 2008.

However, the Secretary’s case, as articulated in Order No. 6681047, is based on an inadequate on-shift examination from 4:30 a.m. to 7:30 a.m. during the September 11, 2008, midnight shift
rather than an alleged inadequate belt examination between 3:00 p.m. and 11:00 p.m. during the preceding production shift on the afternoon and night of September 10. Thus, as noted, Black Beauty argues that Order No. 6681047 must be vacated because the cited on-shift
examination that is the basis for the alleged violation of section 75.362(b) was not required.

The Secretary attempts to rebut the claim that an on-shift examination of the belt entry was not required by relying on the testimony of Black Beauty’s superintendent Gary Campbell.
Campbell testified, based on his review of the examination records, that certain sections of the
conveyor belts were operated during the midnight shift on September 11, 2008, for splicing or
other maintenance. (Tr. 573-74). While these repaired belt sections had to be preshifted for
hazardous conditions in preparation for the day shift, the Secretary has failed to demonstrate that
an on-shift examination of the belt haulage system under section 75.362(b) was required given the
non-production status of the mine.

Significantly, the Secretary does not explicitly contend, nor does any documentary
evidence reflect, that coal was produced on the midnight shift on September 11, 2008. While
Fishback testified that Black Beauty “ran [coal] all three shifts” when Fishback was formerly
employed by Black Beauty, Fishback stated he could not recall whether the midnight shift was producing coal on September 11, 2008, “because its been so long ago.” (Tr. 458-60).
Fishback conceded on-shift examination of belt haulageways is not required during maintenance shifts. (Tr. 460).

While it may be reasonable to assume that the extensive accumulations noted in Order No. 6681046 existed when the on-shift examination was conducted on the afternoon of
September 10, 2008, the Secretary has not sought to amend Order No. 6681047. Nor was any
significant evidence presented by the Secretary at trial regarding the nature and extent of the
conditions in the 2 main East belt haulageway on September 10, 2008, or, concerning the
circumstances underlying the September 10 afternoon on-shift examination. Thus, the central
question is whether, at this late post-trial and post-briefing date, the Commission, on its own,
should consider Order No. 6681047 as amended to conform to the Secretary’s regulatory
requirements. Namely, whether Order No. 6681047 should be considered amended to cite an
inadequate on-shift exam violation of section 75.362(b) during the September 10, 2008,
afternoon production shift.

The Commission, on several occasions, has addressed the issue of the propriety of
allowing post-hearing amendment of a citation to include a new theory of a violation. As a
general proposition, the Commission and its Judges are guided by the Federal Rules of Civil
Procedure. 29 C.F.R. § 2700.1. Although the Commission’s Rules do not address amendment of pleadings, the Commission has noted that it relies on Fed. R. Civ. P. 15 when resolving such
issues. Cumberland Coal Resources, LP, 32 FMSHRC 442, 447 (May 2010) (split decision),
citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).

Fed. R. Civ. P. 15(b)(2) provides:

When an issue not raised by the pleadings is tried by the parties’ express or
implied consent, it must be treated in all respects as if raised in the pleadings.

A party may move – at any time, even after judgment – to amend pleadings to
conform them to the evidence and to raise an unpleaded issue. But failure to
amend does not affect the result of the trial of that issue.

The Commission has distinguished permitting the Secretary’s post-trial amendment when
the mine operator knew, or should have known, that a new theory was being advanced from
instances when amendments are denied due to prejudice. For example, in Cumberland the
Commission stated:

Accordingly, in our jurisprudence we have considered Rule 15(b) in several
contexts. Compare Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar.
1998) (concluding that the Secretary could not amend a citation post-hearing to
include a new theory of violation regarding the cited standard because the trial
record did not reflect that the operator understood, or should have understood, that
the new theory was being litigated) with Faith Coal Co., 19 FMSHRC 1357, 1362
(Aug. 1997) (permitting a citation to be amended after hearing to correct a
numbering error by the Secretary because the operator fully understood the
gravamen of the correct standard, knowingly litigated the citation on that basis,
and suffered no prejudice).

Cumberland, 32 FMSHRC at 447.

Thus, the dispositive question is whether the issue of the adequacy of the on-shift
examination of the 2 main East belt haulageway during the afternoon production shift on
September 10, 2008, “was tried with the express or implied consent of the parties.” (Id. at 32 FMSHRC at 447). An examination of the record evidence reflects that the Secretary’s

focus was on the adequacy of the September 11, 2008, maintenance shift examination, rather than the September 10, 2008, afternoon production shift examination.

For example, Fishback testified that the most recent examination, which covered 4:30 a.m. to 7:30 a.m. on September 11, 2008, just hours before Fishback inspected the beltline,
did not identify any hazardous accumulations anywhere along the 2 Main East beltline. (Sec’y Br. at 3 citing Tr. 409-10, Gov. Ex. 42 p. 213). In this regard, the Secretary asserts:
“Fishback testified that it was ‘not possible’ for even one fifth of the accumulations he observed
to develop in the time between the 4:30 a.m. to 7:30 a.m. examination [on September 11, 2008]
and his [11:00 a.m.] inspection [later that morning].” (Sec’y Br. at 4 citing Tr. 442). In addition,
the Secretary argues: “Indeed, Black Beauty offered [the] testimony of mine examiner Andrew Herndon that it only performed a ‘pre-shift’ examination from 4:30 a.m. to 7:30 a.m. on September 11, 2008 because this was a ‘non-production’ shift.” (Id. citing Tr. 687). Finally, the Secretary notes: “[a]s a result, Herndon testified that he never looked beyond the
dump points, drives, and transfer points during the midnight shift on September 11, 2008,
because he was only required to do a more limited ‘pre-shift exam.’” (Id.)

In the final analysis, it has been neither contended, nor shown, that the Secretary’s theory
of the case was based on an inadequate on-shift examination during the afternoon production
shift on September 10, 2008. Thus, Order No. 6681047 must be vacated because Black Beauty
was not required under section 75.362(b), the cited mandatory standard, to conduct an on-shift
examination of the belt haulageway during the September 11, 2008, midnight maintenance shift.

ORDER

In view of the above, IT IS ORDERED that:

(1) Black Beauty Coal Company shall pay a civil penalty of $500.00 in satisfaction of Citation No. 6672658 in Docket No. LAKE 2008-643.

(2) Consistent with the parties’ approved settlement terms, Black Beauty Coal
Company shall pay a total civil penalty of $143,993.00 in satisfaction of the 20
citations/orders that are the subject of LAKE 2008-643.

(3) 104(d)(2) Order No. 6681047 in Docket No. LAKE 2009-72  IS VACATED.

(4) Consistent with the parties’ approved settlement terms, Black Beauty Coal
Company shall pay a total civil penalty of $80,862.00 in satisfaction of the 14
citations/orders that are the subject of LAKE 2009-72.

(5) Consequently, Black Beauty IS ORDERED to pay within 45 days of the date  of this decision, a total civil penalty of $224,855.00 in satisfaction of the citations/

orders in issue in Docket Nos. LAKE 2008-643 and LAKE 2009-72.

(6) Upon timely receipt of the total $224,855.00 civil penalty, the captioned contest and civil penalty matters ARE DISMISSED.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge 

Distribution: (Certified and Electronic Mail)

Matthew Linton, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,

Suite 800, Denver, CO 80202 

Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Ave., Pittsburgh, PA 15222

/jel

Appendix I