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