Secretary of Labor v. Black Beauty Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Black Beauty resumed mining and altered a roof-fall scene after reporting the incident to MSHA, and an ALJ affirmed an accident-site preservation citation after cutting short the hearing. The Commission held that an actual accident, meaning an injury with a reasonable potential to cause death, triggers 30 C.F.R. § 50.12, not the act of reporting alone. It vacated that ruling and remanded for a reopened record on the nature of the miner's injuries. The Commission affirmed the vacatur of a separate on-shift examination order because the Secretary had not argued before the judge that production during an overlap made the maintenance shift a coal-producing shift, and the new theory was not preserved for review. It also memorialized and affirmed the judge-approved settlement terms for the remaining citations and orders.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.12 and 75.362(b)
• Outcome: The accident-site citation was vacated and remanded for more evidence, the examination-order vacatur was affirmed, and the remaining settlement terms were incorporated and affirmed.
• Key point: Accident-site preservation depends on whether an accident legally occurred, while a party generally cannot introduce a distinct liability theory for the first time on Commission review.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY
OF LABOR,                             :        Docket Nos.:   LAKE 2008-378-R                

MINE
SAFETY AND HEALTH                   :                                LAKE 2008-379-R                

ADMINISTRATION
(MSHA)                      :                                LAKE 2008-380-R    

:                                LAKE 2008-643                    

v.                                              
 :                                LAKE 2009-72

:                                           

BLACK
BEAUTY COAL COMPANY          :       

Before: Cohen, Nakamura, and Althen, Commissioners[1]

DECISION

BY THE COMMISSION:

In these consolidated
contest and civil penalty proceedings arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), an
Administrative Law Judge affirmed Citation No. 6672658, issued to Black Beauty
Coal Company by the Mine Safety and Health Administration (“MSHA”). The
citation alleged that the operator altered the scene of an accident without
MSHA’s permission, in violation of 30 C.F.R. § 50.12. The Judge also
vacated Order No. 6681047, which alleged an inadequate on-shift examination of a
belt in violation of 30 C.F.R. § 75.362(b). The Judge further verbally approved
the parties’ joint settlement motion regarding the remaining citations and
orders but did not specify the terms of the settlement agreement in his final
decision. 34 FMSHRC 436, 437, 445 (Feb. 2012) (ALJ).

The parties
filed cross-petitions for discretionary review, and the Commission granted both
petitions. Black Beauty contends that the Judge erred with respect to his
finding of a violation for Citation No. 6672658, and in his recitation of the
parties’ settlement agreement because he failed to memorialize the terms of the
settlement in his decision. The Secretary maintains that the Judge’s decision
to vacate Order No. 6681047 is not supported by substantial evidence and should
be reversed.

For the reasons
stated below, we conclude that the Judge prematurely terminated the hearing
regarding Citation
No. 6672658,
and we vacate and remand the Citation to the Judge with directions to reopen
the record. We also conclude that the Secretary did not raise before the
Judge the theory of liability for Order No. 6681047 that he is
presenting to the Commission; therefore, we decline to reach the merits of this
argument on appeal. Accordingly, the Judge’s decision vacating the order is
affirmed.
We also describe and affirm the terms of the parties’ settlement agreement as
approved by the Judge.

I.

Disposition

A.    Citation No.
6672658

1.      Factual
Background

Black Beauty
operates the Air Quality No. 1 Mine in Knox County, Indiana. On Saturday, April
5, 2008, at approximately 8:05 p.m., roof bolter Harold Driskill was struck in
the head and torso by a fallen slab of rock that measured approximately 7 feet
long, 4 feet wide, and 8 inches thick. The slab hit Driskill in the head, slid
down his body, and pinned him against the mine floor and the roof bolter. Driskill
stood up with assistance, walked to a mantrip, and was taken to the surface of
the mine where he was transported to the hospital by ambulance. Jnt. Stip. 3 at
1 and 3; Gov. Exs. 15, 16, 18, 19; 34 FMSHRC at 438.

Black Beauty employee
Steve Elliot reported the event to MSHA at 8:23 p.m., pursuant to the
requirements of 30 C.F.R. § 50.10.[2]
At the time the incident was reported, Elliot did not know the nature and
extent of Driskill’s injuries. MSHA Field Office Supervisor Ron Stalhut learned
of the accident at approximately 9:41 p.m., at which time MSHA official Michael
Rennie issued a verbal order, pursuant to section 103(k), 30 U.S.C. §
813(k),
prohibiting Black Beauty from resuming mining operations at the accident site.[3] Elliot sent
out messages over the mine’s Personal Emergency Device to Second Shift Manager
Terry Courtney advising him that a section 103(k) order had been issued and to
shut down the unit. Jnt. Stip. 3 at 4, 6 – 8; Gov. Ex. 17; 34 FMSHRC at 438.

MSHA Inspector
Sylvestor DiLorenzo arrived at the mine at approximately 10:50 p.m. for the
purpose of securing the accident site and initiating an accident investigation.
Upon arrival, he discovered that normal mining operations had resumed, that the
fallen rock had been broken up when it was run over by the roof bolter, and that
the cut had been bolted. Courtney and Acting Superintendent Rick Carie advised
DiLorenzo that the call to MSHA was a misunderstanding. DiLorenzo also learned
that Driskell had been sent to the hospital. DiLorenzo was presented with
conflicting evidence as to the nature of his injuries. Courtney had decided
that mining could resume. However, the mine had not received authority from the
District Manager to continue its mining operations. Because Black Beauty had
resumed mining and altered the accident site without MSHA’s permission, DiLorenzo
issued Citation No. 6672658, alleging a violation of 30 C.F.R. § 50.12.[4] Jnt. Stip.
3 at 5, 7, 9, 12-14; Gov. Exs. 1, 3 (at 2 and 6), 14; 34 FMSHRC at 438-39.

According to Driskill’s
medical records, he suffered abrasions to the arm and rib cage. Although Driskill
was initially cleared to return to work two days after the accident without
significant physical restrictions, the record indicates that three weeks later
on April 28, 2008, Driskill’s doctor advised that he not roofbolt for two weeks
due to significant right shoulder pain and inflammation, and that he continue
taking pain and anti-inflammatory medicine. He was cleared to return to work again
with no restrictions on May 9, 2008. Gov. Exs. 18, 43, 45, 46; 34 FMSHRC at
439.

On the first day
of the hearing, mid-way through the Secretary’s direct examination of his first
witness (Inspector DiLorenzo), the Judge called a brief recess to confer with
counsel in chambers. When the hearing resumed, the Judge announced that the
parties would attempt to resolve Citation No. 6672658 through other means and
that they would explore this alternative resolution the following day. In a
bench decision the next day, the Judge heard and granted a motion for summary
decision by the Secretary affirming the citation. Tr. 272-325.[5] Consequently,
Black Beauty did not cross-examine the Secretary’s witness, nor did it present
witness testimony regarding the citation. The Secretary did not complete direct
examination of his witness. Tr. 272-325.

In his final
written decision of February 10, 2012, quoting his bench decision, the Judge
found that although Driskill experienced pain and discomfort, according to the
evidence, “Driskill’s injuries were not life threatening.” 34 FMSHRC at 439. While
he concluded that no life threatening injury had occurred, the Judge
nonetheless affirmed the citation on the basis of Black Beauty’s call to MSHA
reporting an accident. Id. In considering the requirement of section
50.12 that an operator refrain from altering an accident site without the
permission of MSHA, the Judge reasoned that:

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. 

Id.

2.      Analysis

a)      The occurrence
of an accident, not its reporting, triggers the prohibition on altering an
accident site.

The Judge erred
as a matter of law in ruling that the reporting of an accident, by itself, is
sufficient to trigger section 50.12. The Judge was instead required to
determine whether an “accident” within the meaning of section 50.2(h)(2) had
taken place. In accordance with the standard’s language and controlling
Commission precedent, it is the occurrence of an accident that is the
condition precedent to the application of section 50.12, not the reporting
of one.

Here, however,
the Judge erroneously concluded that it is “the report of an accident”
that triggers the application of section 50.12. 34 FMSHRC at 439 (emphasis
added). The standard, in fact, makes no mention of the “reporting” of an
accident. Section 50.12 simply prohibits an operator from altering an “accident
site” without MSHA’s permission. The Commission has explicitly held that the
requirements of section 50.12 are triggered by the “occurrence” of an accident.
An “accident” is defined in section 50.2(h)(2), 30 C.F.R. § 50.2(h)(2), in
relevant part, as “[a]n injury to an individual at a mine which has a
reasonable potential to cause death.” Cougar Coal Co., 25 FMSHRC
513, 520 (Sept. 2003).
Thus, the Judge’s reliance on the phone call to MSHA was misplaced.

b)     The evidentiary
record is incomplete.

Because of his
legal error, the Judge prematurely terminated the hearing and incorrectly truncated
the evidentiary record with respect to Citation No. 6672658. The Secretary did
not finish the direct examination of his first witness or any other witnesses. Further, the operator was not given the
opportunity to cross-examine the Secretary’s witness or to present any
testimonial evidence in support of its case. Indeed, the record demonstrates
that the injured miner Driskill, was scheduled to testify. He could have provided
much clarification on how the incident occurred and the nature and extent of
the injuries he suffered. The Judge’s actions prevented the entry of
testimonial evidence necessary to resolve the factual and legal questions presented.[6]

Consequently, we
vacate and remand the case to the Judge for further consideration. On remand, the
Judge is directed to reopen the record to permit the parties to present evidence
on the question of whether Driskill’s injuries had a “reasonable potential to
cause death,” thereby making the event an “accident” within the meaning of
section 50.2(h)(2) and making the site an “accident site” under section 50.12.[7]

Accordingly, we
hereby vacate the Judge’s decision on Citation No. 6672658 and remand to him
this part of the case.

B.     Order No.
6681047

1.      Factual
Background

The
on-shift regulation the Secretary alleges was violated only requires an
examination during a shift on which coal is produced. 30 C.F.R. § 75.362(b). On
the date of the Order, there were two production shifts at Black Beauty’s mine
– the day production shift from 7:00 a.m. to 3:00 p.m., and the afternoon
production shift from 3:00 p.m. to 11:00 p.m. There was a third shift, the
midnight maintenance shift, which began at 11:00 p.m. and ended at 7:00 a.m. Tr.
85; 34 FMSHRC at 440.

On
the afternoon of September 10, 2008, at 6:30 p.m., Black Beauty performed an
on-shift examination. Tr. 676; 34 FMSHRC at 442. The September 10 afternoon
shift overlapped with the midnight shift of September 11, 2008, in that the
incoming midnight shift miners left the portal to go underground at 11:40 p.m.
and the outgoing afternoon shift miners arrived at the portal to exit the mine
at 1:30 a.m. R. Exs. 47-A, 47-B. The last car of coal for the afternoon shift
was dumped at the feeder at 1:00 a.m. Tr. 85-89, 523-25; R. Ex. 47-A. The first
coal of the September 11 day shift was dropped on the feeder at 7:30 a.m. Tr.
526 (testimony of Mine Superintendent Gary Campbell); see also R. Ex
47-C.

On
the morning of September 11, MSHA Inspector Glenn Fishback observed extensive
accumulations of combustible materials in the form of loose coal, coal fines,
and float coal dust, which ran along the energized 2 Main East conveyer belt
header inby to the number 48 crosscut. 34 FMSHRC at 440; Gov. Exs. 32, 33. Cleaning
up the accumulations required approximately 20 employees shoveling each shift
for a total of 18 hours and the use of six 3,500-pound tanks of rock dust. 34
FMSHRC at 440. As a result of his observation, Fishback issued a section 104(d)(2)
Order No. 6681046 citing a violation of section 75.400,[8] and section
104(d)(2) Order No. 6681047 citing a significant and substantial (“S&S”)
violation of the on-shift examination requirement of 30 C.F.R. § 75.362(b) that
was also alleged to be the result of an unwarrantable failure.[9] 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.

34 FMSHRC at
441; Gov. Ex. 32.

The
Judge vacated the order, finding that given the non-production status of the
mine during the maintenance shift, the Secretary failed to demonstrate that an
on-shift examination, pursuant to 30 C.F.R. § 75.362(b), [10] was
required. He found it significant that the Secretary did not “explicitly
contend” or produce any documentary evidence that coal was produced during the
midnight shift on September 11. 34 FMSHRC at 442. The Judge was also persuaded
by Fishback’s inability to recall whether coal was produced on the midnight
shift. Id. (citing Tr. 458-60). He further noted that although it was
reasonable to assume that the extensive accumulations existed during the
on-shift examination on the afternoon of September 10, the Secretary did not
seek to amend the order to include that shift. The Judge declined to do so sua
sponte. 34 FMSHRC at 442-43 (citing Cumberland Coal Res., 32 FMSHRC
442, 447 (May 2010)).

2.      Analysis

The Secretary
argues that the Judge’s decision is not supported by substantial evidence. He
maintains that based on the undisputed fact that the conveyor belt was transporting
coal until 1:00 a.m. during the midnight shift and that miners were working
underground, the cited maintenance shift was a “coal producing” shift that
required an on-shift examination. He further contends that, based on the
operator’s own admission that an on-shift examination was not performed during
the midnight shift, Black Beauty violated section 75.362(b).  

Black Beauty
responds that the Secretary’s argument that a separate on-shift examination was
required due to the coal produced during the two-hour overlap between the
production shift and the maintenance shift is a new legal theory advanced by
the Secretary on appeal and was not raised before the Judge. It maintains that
an on-shift examination was not required during the maintenance shift, and that
the brief overlap of the afternoon shift and the midnight shift does not
transform the maintenance shift into a production shift.

We conclude that
the Secretary failed to present for the Judge’s consideration his theory that the
coal produced during the two-hour shift overlap constituted coal production on
the maintenance shift for purposes of section 75.362(b).

Section
113(d)(2)(A)(iii) of the Mine Act provides that “[e]xcept for good cause shown,
no assignment of error by any party shall rely on any question of fact or law
upon which the administrative law judge had not been afforded an opportunity to
pass.” 30 U.S.C.            § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(d). The
petitioner’s actions cannot conflict with the basic principle that parties in
Mine Act cases must first present their evidence and advance their legal
theories before the Judge, and not for the first time on appeal. Oak Grove
Res., LLC, 33 FMSHRC 2657, 2664 (Nov. 2011) (citing Beech Fork
Processing, Inc., 14 FMSHRC 1316, 1321 (Aug. 1992)).[11]

The Commission
has also recognized that a matter urged on review may have been implicitly
raised below or is so intertwined with something tried before the judge that it
may properly be considered on appeal. See, e.g., Oak Grove, 33 FMSHRC at
2664 (citing Beech Fork, 14 FMSHRC at 1321); San Juan Coal Co.,
29 FMSHRC 125, 130 (Mar. 2007); Freeman United Coal Mining Co., 6 FMSHRC
1577, 1580 (July 1984). An issue that is “sufficiently related” to one raised
before the judge satisfies these criteria. BHP Copper, Inc., 21 FMSHRC
758, 762 (July 1999) (quoting Keystone Coal Mining Corp., 16 FMSHRC 6,
10 n.7 (Jan. 1994)) (internal quotations omitted). If none of these criteria
are met, an issue may be heard on appeal only upon a showing of “good cause.” 30
U.S.C. § 823(d)(2)(a)(iii). The Commission’s practice has been to resolve these
“opportunity to pass” questions on a case-by-case basis. See, e.g.,
Ozark-Mahoning Co., 12 FMSHRC 376, 379 (Mar. 1990).

A review of the record
reveals that the Secretary did not present to the Judge the theory that the maintenance
shift was a “coal producing” shift that required a separate on-shift
examination by virtue of the 1-2 hour shift overlap. The Secretary quite
clearly laid out the entirety of his argument in his Post-Hearing Brief. Specifically,
he argued that the Judge should uphold the inadequate examination order because:
(1) Black Beauty failed to record the obvious and extensive accumulations for
at least a week prior to the issuance of the underlying accumulations Order;
and (2) Black Beauty failed to complete an adequate on-shift examination of the
entire beltline during the midnight shift even though the belts were running
and miners were working in the section. See S. Post-Hrg. Br. at 2. He
then specifically framed the issue for the Judge by stating that “the question
for this Court to resolve is straightforward; did the examination records . . .
identify the conditions on the . . . beltline.” Id. at 11. The
Secretary’s assertions at trial did not address the threshold issue that to
prove a violation of 30 C.F.R.      § 75.362(b), the Secretary must establish
that coal was produced during the shift in question. 

The Secretary
also failed to address this necessary element of the alleged violation at the
hearing. In his opening statement, the crux of the Secretary’s argument involved
the deficiencies identified by Inspector Fishback in Black Beauty’s exam
records. Counsel stated that “the exam records are, in Mr. Fishback’s
estimation, totally inadequate because they simply failed to identify the
condition that, in his estimation, had to have been present, his testimony will
show, for at least a week.” Tr. 35. Moreover, the direct and cross-examination
by the Secretary provided little or no discussion about the possibility of coal
production during the midnight shift, not even in the context of the two-hour shift
overlap. Instead, the Secretary only elicited testimony that would prove the
magnitude and duration of the accumulations and Black Beauty’s alleged failure
to record them. Tr. 395-458, 488-89, 490, 547-73, 582-85, 612-19, 621-28, 689-704.

Counsel for
Black Beauty raised the issue of coal production during his cross-examination
of Inspector Fishback and again in Black Beauty’s post-hearing brief in which he
plainly argued that coal had not been produced. Tr. 459-60; BB Post-Hrg Br. at

9. Even then, the Secretary made no attempt to rebut, assert, or address the issue
   of coal production except to say that “Black Beauty’s examination records show
   that the . . . beltline was running during the nearest so-called maintenance shift
   . . . even if the mine maintains that it did not produce coal during the shift.”
   S. Post-Hrg Br. at 6. Moreover, the Secretary failed to submit or assert any
   record evidence in support of a theory that coal was produced on the midnight
   shift. See 34 FMSHRC at 442. The Judge recognized the Secretary’s
   failure to proffer the argument of coal production in his decision. Id. (“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”).

Thus, at no
point did the Secretary’s case before the Judge rely on coal being produced
after 11:00 p.m. on September 10 as part of his proof that a violation of the
standard had occurred. Instead, he chose a litigation strategy that hinged on factors
unrelated to the issue of coal production.  

Moreover, we fail to see where
the Secretary’s coal production theory was implicitly raised or how it is “so
intertwined with something tried before the judge that it may properly be
considered on appeal.” See Beech Fork, 14 FMSHRC at 1321; San Juan
Coal Co., 29 FMSHRC at 130. As stated above, the Secretary’s presentation
of evidence, through pleadings and testimony, was limited to the adequacy of
the exam records and the extent and duration of the coal accumulations – lines
of proof completely distinct from that which it now seeks to raise on appeal. We
also fail to see “good cause” for why the Commission should entertain this new
litigation strategy.

Accordingly, we
conclude that the Judge was never “afforded an opportunity to pass” on the
question of whether the coal produced after 11:00 p.m. by the afternoon shift constituted
coal production during the separate maintenance shift that required a separate
on-shift examination. Therefore, this argument has not been preserved for
Commission review, and in accordance with section 113(d)(2)(A)(iii) of the
Mine Act, it
will not be considered. The Judge’s decision regarding this order is affirmed.

II.

Terms of Settlement

Prior to the
hearing, the parties settled 18 of the 20 citations and orders contained in
Docket No. LAKE 2008-643, and 11 of the 14 citations and orders in LAKE
2009-72. 34 FMSHRC at 437; Tr. 9-10. The terms of the agreement were set forth
in a Joint Motion to Approve Settlement Agreement and a draft Decision
Approving Settlement, which the Judge admitted at hearing as Joint Exhibit 1. 34
FMSHRC at 437; Tr. 24. The Judge approved the settlement terms on the record
and stated that he would incorporate them into the final decision. Tr. 24; 34
FMSHRC at 437. While the Judge included the total penalty amounts in his final
written decision, he did not specify the agreed upon modifications.[12] 34 FMSHRC
at 437.

The parties request that
this issue be remanded to the Judge for the purpose of memorializing the terms
of the settlement agreement. 

In the interest
of judicial economy, the terms of the parties’ settlement agreement as outlined
in Joint Exhibit 1 and as approved by the Judge are memorialized in the charts
below. The citations, modifications, initial assessments, and the agreed upon
settlement amounts are contained herein.[13]

A.    LAKE 2008-643

Citation/

Order
No.

Modification

Initial Assessment

Agreed Assessment

6672419

From:
High Negligence

To:
Moderate Negligence

$23,229.00

$15,000.00

6672424

From:
3 persons affected

To:
1 person affected

$23,229.00

$15,100.00

6672429

From:
High likely

To:
Reasonably likely

From:
Section 104(d)(2) order

To:
Section 104(a) citation

$17,301.00

$11,250.00

6672444

From:
High Negligence

To:
Moderate Negligence

$6,996.00

$4,000.00

6672454

From:
High Negligence

To:
Moderate Negligence

From:
13 persons affected

To:
3 persons affected

From:
Section 104(d)(2) order

To:
Section 104(a) citation

$15,971.00

$6,000.00

6672475

From:
2 persons affected

To:
1 person affected

$9,634.00

$6,744.00

6672481

From:
High Negligence

To:
Moderate Negligence

$4,689.00

$3,000.00

6672490

Accept
as Written

$11,500.00

$11,500.00

6672491

Penalty
Reduction Only

$40,300.00

$30,000.00

6677676

Accept
as Written

$15,570.00

$15,570.00

6677725

From:
3 persons affected

To:
1 person affected

$3,405.00

$2,200.00

6678019

Accept
as Written

$3,143.00

$3,143.00

6678028

From:
S&S

To:
non-S&S

From:
Reasonably likely

To:
Unlikely

$2,473.00

$1,731.00

6678030

Accept
as Written

$946.00

$946.00

6678214

From:
S&S

To:
non-S&S

From:
Reasonably likely

To:
Unlikely

$2,678.00

$2,142.00

6678217

Penalty
Reduction Only

$3,996.00

$3,197.00

7639417

From:
High Negligence

To:
Moderate Negligence

$7,300.00

$5,110.00

7639418

From:
High Negligence

To:
Moderate Negligence

$9,800.00

$6,860.00

B.     LAKE 2009-72

6669352

Penalty
Reduction Only

$3,996.00

$3,000.00

6670740

Penalty
Reduction Only

$6,458.00

$5,166.00

6670744

From:
Fatal

To:
Lost workdays

$3,996.00

$2,797.00

6670754

From:
Fatal

To:
Permanently Disabling

$6,996.00

$5,597.00

6670756

From:
Fatal

To:
Permanently Disabling

$6,996.00

$4,897.00

6672692

Accept
as Written

$3,405.00

$3,405.00

6678092

From:
S&S

To:
non-S&S

From:
Reasonably likely

To:
Unlikely

$3,996.00

$3,000.00

6681049

From:
High Negligence

To:
Moderate Negligence

From:
10 persons affected

To:
2 persons affected

$40,180.00

$20,000.00

7493437

Accept
as Written

$4,000.00

$4,000.00

7493438

Accept
as Written

$4,000.00

$4,000.00

7493439

Accept
as Written

$4,000.00

$4,000.00

WHEREFORE,
as ORDERED by the Judge, Citation Nos. 6672490, 6677676, 6678019,
6678030, 6672692, and Order Nos. 7493437, 7493438, and 7493439 are AFFIRMED,
as issued; and the remaining Citations and Orders are modified as outlined
above.

III.

Conclusion

In
summary, we
vacate the Judge’s decision regarding Citation No. 6672658 and remand the case
with instructions to reopen the record to receive additional evidence. We further conclude
that, regarding
Order No. 6681047, the
Judge did not have the opportunity to pass on the Secretary’s theory of coal
production asserted for the first time on appeal. Therefore, in accordance with
section 113(d)(2)(A)(iii) of the Mine Act, we decline to reach the merits of
this argument, and the Judge’s decision is affirmed. Lastly, we incorporate and
affirm herein the terms of the parties’ settlement agreement regarding the
remaining citations and orders.

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner                                                                          

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1] Chairman Mary
Lu Jordan and Commissioner Michael G. Young assumed office after this case
had been considered at a Commission meeting. A new Commissioner possesses legal
authority to participate in pending cases, but such participation is
discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 (June 1994). In
the interest of efficient decision making, Chairman Jordan and Commissioner Young
have elected not to participate in this matter.

[2] 30 C.F.R. § 50.10
provides that:

The operator shall immediately contact MSHA at once
without delay and within 15 minutes . . . once the operator knows or should
know that an accident has occurred involving:

(a) A death of
an individual at the mine;

(b) An injury of
an individual at the mine which has a reasonable potential to cause death;

(c) An
entrapment of an individual at the mine which has a reasonable potential to
cause death; or

(d) Any other
accident.

[3] 30 U.S.C. §
813(k) states that:

In the event of any accident occurring in a coal or
other mine, an authorized representative of the Secretary . . . may issue such
orders as he deems appropriate to insure the safety of any person in the coal
or other mine, and the operator of such mine shall obtain the approval of such
representative . . . of any plan to . . . return affected areas of such mine to
normal.

[4] 30 C.F.R. §
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.”

[5] The Secretary
did not move for summary decision until the morning of the second day of trial.
Tr. 278. It appears that the Secretary made the motion in response to a
suggestion by the Judge during the conference with counsel in chambers the
previous day. Tr. 272.

[6] An
Administrative Law Judge should not interrupt the presentation of testimonial
evidence to suggest to a party that it file a motion for summary decision. See
Commission Procedural Rule 67, 29 C.F.R. § 2700.67. However, this is what
appears to have happened. See Tr. 120-22, 260, 272-78.

[7] The evidence
should be considered within the parameters outlined by the Commission in Signal
Peak Energy, LLC, 37 FMSHRC , slip op. at 6, No. WEST 2010-1130 (Mar. 4, 2015)
and Cougar Coal, 25 FMSHRC at 520-21. Specifically, because the separate
reporting requirement in section 50.10 demands a prompt determination of
whether an injury “has a reasonable potential to cause death,” readily
available information, such as the nature of the accident, is highly relevant
in determining whether an injury constitutes an “accident.” Similarly,
operators cannot wait for medical or clinical opinions before determining
whether an “accident” under section 50.2(h)(2) has occurred. An operator, in
determining whether it is required to notify MSHA under 30 C.F.R. § 50.10, “must
resolve any reasonable doubt in favor of notification.” See Signal Peak,
36 FMSHRC , slip op. at 6-7; Cougar Coal, 25 FMSHRC at 520-21.

[8] Order No.
6681046 was assigned to a different judge and is the subject of Black Beauty
Coal Co., 34 FMSHRC 677, 685-90 (Mar. 2012) (ALJ). That order is not at
issue here.

[9] The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.”

The
unwarrantable failure terminology is also taken from section 104(d)(1) of the
Act, and establishes more severe sanctions for any violation that is caused by
“an unwarrantable failure of [an] operator to comply with . . . mandatory
health or safety standards.” Id. If an MSHA inspector finds that a
violation is S&S and due to the operator’s unwarrantable failure, the
citation is to be issued pursuant to section 104(d)(1), which can lead to more
stringent enforcement measures.

[10] Section
75.362(b) provides that:

During each
shift that coal is produced, a certified person shall examine for hazardous
conditions and violations of the mandatory health or safety standards
referenced in paragraph (a)(3) of this section 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.

30 C.F.R. §
75.362(b) (emphasis added).

[11] This explicit
statutory limitation on the scope of Commission review may be raised by an
objecting party or, sua sponte, by the Commission itself, at any
appropriate time during the Commission review process. E.g., Beech Fork,
14 FMSHRC at 1320 (finding that the judge “had not been afforded an opportunity
to pass” on the legal theory raised on review by petitioner).

[12] Commission
Procedural Rule 31(g) provides in pertinent part that “[a]ny order by the Judge
approving a settlement shall set forth the reasons for approval and shall be
supported by the record.” 29 C.F.R. § 2700.31(g).

[13] The hearing
commenced with five violations at issue. Prior to the close of the record, the
Secretary agreed to vacate Citation No. 6672659 (LAKE 2008-643), and the
parties agreed to settle Order No. 6672674 (LAKE 2009-72) by modifying it from
a section 104(d)(2) order to a section 104(a) citation and reducing the penalty,
and Order No. 6676919 (LAKE 2009-72) by modifying it from S&S to
non-S&S and reducing the penalty. Tr. 307-09, 322-23, 539-41. The
settlements of these violations were approved by the Judge at hearing and again
in his final written decision of February 10, 2012. Tr. 307-09, 322-23, 539-41;
34 FMSHRC at 437.