Black Beauty Coal Company v. Secretary of Labor

Plain-English summary

A roof bolter at Black Beauty Coal's Air Quality No. 1 Mine was struck by fallen roof material, remained able to walk, and was treated for contusions and abrasions. Black Beauty reported the event to MSHA but resumed mining at the roof-fall site before an inspector arrived, leading to a citation for altering an accident site. The Commission vacated an earlier ruling and remanded because section 50.12 applies only if an accident actually occurred, not merely because the operator reported one. On remand, the parties settled the citation by reducing negligence from high to low and the penalty from $2,678 to $500. Judge Jerold Feldman approved that settlement and related settlements, ordered total penalties of $224,855, and dismissed the proceedings upon timely payment.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.2, 50.10, and 50.12
• Outcome: The accident-site citation was settled at low negligence and $500, related settlements brought the total payment to $224,855, and the proceedings were dismissed upon payment.
• Key point: The accident-site preservation rule depends on whether an accident with a reasonable potential to cause death actually occurred, not simply on whether an event was reported to MSHA as an accident.

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

June 25, 2015

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.

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

Mine: Air Quality No. 1

DECISION ON
REMAND APPROVING SETTLEMENT[1]

AND

ORDER TO PAY

Before:            Judge Feldman

Section 50.2 of the Secretary of Labor’s (“Secretary”)
regulations defines, in pertinent part, an “accident” as “[a]n injury to an
individual at a mine which has a reasonable potential to cause death.” 30
C.F.R. § 50.2. Section 50.10 of the regulations requires a mine operator to notify
the Mine Safety and Health Administration (“MSHA”) within 15 minutes of the
occurrence of an “accident” that can potentially result in death. 30 C.F.R. §
50.10. Following such notification, MSHA routinely verbally issues a section
103(k) order prohibiting a mine operator from resuming operations at an
accident site before MSHA can determine that mining operations can be safely
resumed. 30 U.S.C. § 813(k). Additionally, section 50.12 of the regulations,
the cited mandatory safety standard in issue in this Remand Decision, requires
the 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.

This remand matter concerns an
alleged violation by Black Beauty Coal Company (“Black Beauty”) of section
50.12, which was cited in Citation No. 6672658. The Secretary attributed the
violation to a high degree of negligence and initially sought to impose a
penalty of $2,678.00.

The undisputed evidence presented
at the hearing reflects that at approximately 8:05 p.m. on April 5, 2008, a
roof bolter was struck in the head and torso by a fallen slab of roof material.
The victim remained ambulatory after the accident, walked to a mantrip, and was
taken to the surface where he was transported to a hospital via ambulance. Shortly
thereafter, at approximately 8:23 p.m., Black Beauty reported the event to MSHA
pursuant to the requirements of section 50.10, which resulted in MSHA’s
issuance of a verbal 103(k) order communicated via telephone at approximately
9:41 p.m. See, e.g., Black Beauty Coal Co.,    37 FMSHRC
__, slip op. at 2-3 (Apr. 7, 2015).

An MSHA inspector arrived at the accident site
at approximately 10:50 p.m. At that time, normal mining operations at the site
of the roof fall had resumed after Black Beauty’s management reportedly
received information from the hospital emergency room that the roof bolter was
not seriously injured. This information is consistent with, and supported by,
the roof bolter’s emergency room medical records, which were proffered by the
Secretary at the hearing, reflecting that the victim sustained contusions and abrasions
to the shoulder and rib cage.    See Gov. Exs. 45, 46. Although the roof
bolter was initially cleared to return to work two days after the accident
without significant physical restrictions, the record also reflects that three
weeks later, on April 28, 2008, the roof bolter’s physician advised that he
refrain from roof bolting for two weeks due to significant right shoulder pain
and inflammation that was treated with anti-inflammatory medication. 37 FMSHRC
__, slip op. at 2-3.

The Secretary moved for summary decision with
respect to Citation No. 6672658 at the conclusion of his direct case. Tr.
278-79. The Secretary does not contend that the injuries sustained by roof
bolter were life threatening. However, the Secretary asserts:

The Secretary believes that this is a
straightforward application of the 50.12 regulation to the operative facts in
this case. And that is, again, as Your Honor has stated, 50.12 states that
unless granted permission by an MSHA district manager, no operator may alter an
accident cite, et cetera, the rest of what the regulation says. The facts are
undisputed that the mine never received permission by an MSHA district manager
to continue operations. And thus, there is no dispute that the accident site
was modified.

Tr. 283.

Based on the above undisputed
medical evidence presented at the hearing, following the Secretary’s request
for a summary decision, I issued a bench decision, which was formalized in a
written decision, holding that the April 5, 2008, incident did not constitute an
“accident” because the injuries sustained did not present “a reasonable
potential to cause death.” Black Beauty Coal Co., 34 FMSHRC 436, 439
(Feb. 2012) (ALJ). Nevertheless, having reported the incident as an “accident,”
albeit erroneously, I concluded that Black Beauty was precluded from resuming
normal mining operations without MSHA’s approval. Id. Consequently, I
affirmed the violation of section 50.12 in Citation No. 6672658, reduced the
negligence attributable to the violation from “high” to “low,” and reduced the
civil penalty from $2,678.00 to $500.00. Id.  

As the Secretary’s motion for summary decision
with respect to Citation No. 6672658 was summarily granted in a bench decision
based on the undisputed medical reports, after presentation of the Secretary’s
direct case, the Commission, in essence, concluded that I prematurely
terminated the hearing without providing Black Beauty with the opportunity to
further clarify the “nature and extent of the injuries suffered.”[2]
37 FMSHRC __, slip op. at 4-5. Consequently, the Commission vacated my
affirmance of the cited violation in Citation No. 6672658 with remand
instructions to reopen the record for the purpose of receiving additional
evidence. Id. at 5. In this regard, the Commission concluded that
if the roof bolter’s injuries did not have a reasonable potential to cause
death, Black Beauty was permitted to resume operations without MSHA’s approval
because the site of the roof fall could not be deemed an “accident site.” Id.
at 4. Specifically, the Commission held that “it is the occurrence of
an accident that is the condition precedent to the application of section
50.12, not the reporting of one.” Id.

The Commission’s remand was
followed by a telephone conference with the parties on May 12, 2015, during
which I sought to determine if the parties could agree on whether the injuries
sustained by the roof bolter presented “a reasonable potential to cause death.”
The parties have now filed a joint motion to approve settlement of Citation No.
6672658. The parties have agreed on a reduction of the proposed civil penalty
for Citation No. 6672658 from $2,678.00 to $500.00. The parties’ settlement
terms include lowering the degree of negligence attributable to Black Beauty’s
alleged violation of section 50.12 from “high” to “low.”

Given Black Beauty’s acquiescence
to the fact of the violation, I believe the reduction in penalty based on a
substantial reduction in the degree of Black Beauty’s negligence is amply
supported by the record, which reflects rather insignificant injuries sustained
by the roof bolter. Thus, Black Beauty’s resumption of mining operations at the
roof fall site, a questionable “accident” site at best, without MSHA’s prior
approval, supports the parties’ agreement that the violation was attributable
to low negligence. In the absence of any aggravating circumstances, the penalty
reduction is consistent with the penalty criteria in section 110(i) of the Act.
30 U.S.C. § 820(i). Consequently, the parties’ motion to approve settlement IS
GRANTED.

ORDER

In view of the above, IT IS
ORDERED that the parties’ settlement of Citation No. 6672658 IS AFFIRMED.
IT IS FURTHER ORDERED that the degree of negligence attributable to
Black Beauty for the violative condition is modified from “high” to “low.”

Finally, IT IS FURTHER ORDERED
that Black Beauty Coal Company shall pay the $500.00 civil penalty in
satisfaction of Citation No. 6672658 in Docket No. LAKE 2008-643.

IT IS FURTHER ORDERD that
consistent with the parties’ settlement terms, Black Beauty Coal Company shall
pay the $143,493.00 civil penalty in satisfaction of 19 other citations and
orders at issue in Docket No. LAKE 2008-643.[3]

Consequently, IT IS ORDERED that
Black Beauty Coal Company shall pay a total civil penalty of $143,993.00 in
satisfaction of 20 citations and orders at issue in Docket No. LAKE 2008-643.

IT IS FURTHER ORDERED that
consistent with the parties’ settlement terms, Black Beauty Coal Company shall
pay the $80,862.00 civil penalty in satisfaction of 14 citations and orders at
issue in Docket No. LAKE 2009-72.[4]

Upon receipt of timely payment of
the total $224,855.00 civil penalty within 45 days of this Remand Decision, the
captioned civil penalty and contest proceedings ARE DISMISSED.[5]

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Emily
B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Blvd, Suite 216, Denver, CO 80204

Arthur
Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

/acp

[1] This Remand Decision concerns only Citation No.
6672658 in Docket No. LAKE 2008-643.

[2] At the hearing, counsel for Black Beauty represented
that the roof bolter victim was prepared to testify that he did not sustain
serious injuries. Tr. 296.

[3] Prior to the hearing, the parties settled 18 of the
20 citations and orders at issue in Docket No. LAKE 2008-643. During the
hearing, prior to the close of the record, the Secretary agreed to vacate
Citation No. 6672659. While I approved of the settlement of the 18 citations
settled prior to the hearing in my February 10, 2012, initial decision, the
settlement terms were officially memorialized in the Commission’s April 7,
2015, remand. 37 FMSHRC __, slip op. at 9-11. Black Beauty has agreed to pay
$143,493.00 in satisfaction of these 19 settled citations and orders.

[4]
Prior to the hearing, the parties settled 11 of
the 14 citations and orders at issue in Docket No. LAKE 2009-72. During the
hearing, prior to the close of the record, the Secretary agreed to settle two
additional citations (Citation Nos. 6672674 and 6676919). While I approved of
the settlement of the 11 citations settled prior to the hearing in my February
10, 2012, initial decision, the settlement terms were officially memorialized
in the Commission’s April 7, 2015, remand. 37 FMSHRC __, slip op. at 9-11. Black
Beauty has agreed to pay $80,862.00 in satisfaction of these 13 settled citations
and orders.

[5] 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.