FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
TELEPHONE: (412)
920-2682
FAX: (412) 928-8689
April 4, 2012
|
BIG RIDGE, INC., |
: : : : : : : : : : : |
CONTEST PROCEEDINGS
Docket No. LAKE 2011-699-R Order No. 8424291; 05/16/2011 Docket No. LAKE 2011-700-R Citation No. 8428712; 05/19/2011 Mine ID: 11-03054 Mine: Willow Lake Portal |
DECISION
| Representatives: | Suzanne F. Dunne, Esq., and Kevin Wilemon, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Room 844, Chicago, IL for the Respondent R. Henry Moore, Esq., and Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Tower, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for the Contestant |
| Before: | Judge Lewis |
STATEMENT OF THE CASE
The above-captioned matter is before me pursuant to the Federal Mine Safety and Health Act of 1977 (the “Act”), 30 U.S.C. § 801 et seq. Pursuant to the agreement of the parties, an in-person hearing was waived. The within decision is based upon the record, including the pleadings, stipulations of fact and arguments advanced by counsel in their written memoranda.
PROCEDURAL HISTORY
This case has a rather thorny procedural history:
On May 16, 2011, an incident occurred at Big Ridges’s (“Big Ridge” or “Contestant”) Willow Lake Portal mine which led to a 103(j) order, Order No. 8424291, being issued by Mine Safety and Health Administration (“MSHA”) inspector Anthony Fazzalare. After MSHA investigators arrived on the scene, the 103(j) order was modified to a 103(k) order. Said Order was again modified on May 17, 2011. Due to Contestant’s failure to follow the approved plan of action, Citation No. 8428712 was issued on May 19, 2011 pursuant to § 104(a) of the Act. 30 U.S.C. § 814(a).
On May 31, 2011, Contestant filed its Notice of Contest, averring that Citation No. 8248712 was invalid in that “no accident” occurred, “no violation of the cited provision of the act existed,” and that the inspector’s evaluation was not valid or appropriate.
On July 8, 2011, the undersigned held a telephone conference during which the parties essentially indicated that there were few, if any, genuine issues of material fact in dispute. Rather, the critical question was legal in nature, i.e. whether the incident in controversy, as a matter of law, warranted the issuance of the 103(j) and subsequent 103(k) orders.
On October 31, 2011, Contestant filed its Motion to Dismiss Order No. 8424291 and Citation No. 8428712. In its Motion, Contestant again averred that Order No. 8424291 was invalidly issued pursuant to 103(j) and 103(k) of the Act and that, consequently, Citation No. 8428712 should be vacated as being issued based upon an invalid order. In support of its motion, Contestant also filed a memorandum of law with stipulations of fact.[1] On November 21, 2011, the Secretary filed her Response to Contestant’s Motion to Dismiss Order No. 8424291 and Citation No. 8428712. Then, on November 29, 2011, the undersigned issued an Order Denying the Contestant’s Motion.[2]
On December 9, 2011, the Contestant filed a Motion for Reconsideration. Inter alia, Contestant advanced that the undersigned had mischaracterized its principal argument for invalidating Order No. 8424291 in his November 29, 2011 denial of its dismissal request. Contestant advanced that its principal argument was that the Secretary’s authority to issue 103(j) orders was “dependent upon and appropriate only when ‘rescue and recovery work was necessary.’”
On January 19, 2012, the undersigned held another prehearing conference. He advised the parties that he intended to deny Contestant’s Motion for Reconsideration, and further requested that the parties inform him within two weeks how they wished to proceed, including whether they wished to have an in-person hearing as to any of the remaining issues in the case, including the underlying 104(a) Citation No. 8428712. On January 20, 2012, the undersigned issued the written Order Denying Contestant’s Motion for Reconsideration, and again requested that the parties provide a status update within two weeks.
On January 22, 2012, the Contestant filed a “Precautionary Petition for Discretionary Review” with the Commission.[3] On February 27, 2012, the Commission denied the Petition, finding the January 20, 2012 Order Denying Reconsideration was not a final decision ending the undersigned’s jurisdiction over the matter. The Commission noted that the undersigned had neither explicitly affirmed Order No. 8424291 as reasonable nor dismissed Big Ridge’s notice of contest.
The parties subsequently submitted to me a joint stipulation of fact with respect to Citation No. 8428712 providing that “to the degree that Order No. 8424291 is valid, the parties stipulate that a violation of the Order occurred as alleged in Citation No. 8428712 and that the proper negligence designation for such violation is high negligence.”[4] The Contestant maintained its position that Order No. 8424291 was invalid and preserved its argument for appeal.[5]
On March 9, 2012, I held a final telephone conference with the parties during which they both agreed to waive their right to an in-person hearing and requested that the undersigned dispose of the within matter on the record, based upon the stipulations of fact and written pleadings and arguments that had previously been submitted.
STIPULATIONS OF FACT
1. Big Ridge is an “operator” as defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. § 803(d),at the coal mine at which the Citation and Order at issue in this proceeding were issued.
2. Operations of Big Ridge, at the Willow
Lake Portal Mine (“
3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Mine Act.
4. The individual whose signature appears in Block 22 of the Citation and Order at issue in this proceeding was acting in his official capacity and as an authorized representative of the Secretary of Labor when the Citation and Order were issued.
5. True copies of the Citation and Order at issue in this proceeding were served on Big Ridge as required by the Mine Act.
6. Order No. 8424291 and Citation No. 8428712 were issued to Big Ridge in response to an event that occurred on May 16, 2011.
7. The event occurred during the third
shift at
8. Third Shift was a production shift, commencing on May 15, 2011, at 11:00 pm and concluding at 7:00 am on May 16, 2011.
9. A production crew was working on Unit 2, which included Unit Mechanic, Tim Borders.
10. Unit 2 was a super-section, which permitted two production crews to work simultaneously.
11. Nathan Genesio was Mine Manager. Shift Leader Brian Duty was supervising a crew on the left side of Unit 2. The right side crew was led by Section Forman Jason Shelton.
12. Mr. Duty’s crew consisted of Ram Car Operators Jon Farmer, Thomas Mahan and Robert Roach; Roof Bolter Operators Darrell Kirk and Caleb Webb; and Miner Operator Reuban Markham. Scoop Operator Matt Fletcher assisted both the left and right side crews.
13. After arriving on the Unit at
approximately 11:55 pm, Brian Duty and Jason
14. After completing his hazard check and checking the air at the working faces, Mr. Duty ordered Joy Continuous Mining Machine No. 245 (“continuous miner”) moved to the 9L crosscut to begin production.
15. The first cut taken completed or “blew through” the crosscut separating the 9 and 10 entries that had been partially mined on a prior shift.
16. The continuous miner became stuck in 9L during the second cut, which was the first full cut of the shift.
17. Mr. Markham attempted to back the continuous miner out but it would not move.
18. The continuous miner became stuck at
about 2:45 am; Messrs. Duty,
19. The tail of the continuous miner was located underneath roof that had been bolted in compliance with the provisions of the roof control plan. The body of the vehicle or its main chassis was beyond the last row of bolts under unsupported roof that had not yet been bolted.
20. The roof in the subject area was composed of gray shale.
21. No hazards were identified with the roof and no evidence of prior roof falls was evident on the ground.
22. After being apprised of the problem, Mr. Genesio traveled to the area and walked around the pillar in an attempt to look back through the hole created by the blown out crosscut. He was unable to identify the problem from that vantage point.
23. Mr. Borders observed the affected continuous miner but was not certain what had caused it to become immobilized.
24. Due to a rut or sloping of the ground, the left cat-track of the continuous miner was not in contact with the ground.
25. Mr. Duty sent for timbers or crib-ties, which were delivered to the area by the Ram Car Operator Robert Roach for use in extricating the miner.
26. Messrs. Duty, Farmer, Borders,
27. Several crib ties were tossed from beyond the miner’s tail and under supported roof towards the miner’s left side cat track.
28. Mr. Borders was positioned to the right and behind the rear of the continuous miner’s tail under supported roof when he tossed a crib tie towards the cat-track.
29. At approximately 3:15 am, just after tossing the crib tie, the roof popped and cracked. A portion of the unsupported roof dislodged and fell. The rock that dislodged from the roof was approximately 7 feet long, 2 feet wide, and 1 to 8 inches thick. The break terminated at the last row of bolts. The roof was undisturbed between the last row of bolts and the second row of bolts.
30. Mr. Borders was kneeling at the right side of the end of the continuous miner’s tail, facing in by when he was struck by a piece of the rock. The rock that fell from the roof first struck the continuous miner’s tail, causing the rock to break apart.
31. A portion of the broken rock struck Mr. Borders after it hit the tail. The parties disagree as to whether Mr. Borders was standing under supported or unsupported roof when he was struck by the falling material.
32. Mr. Markham and Mr. Roach removed the rock from Mr. Borders and Mr. Duty helped Mr. Borders to his feet.
33. Mr. Borders’ left arm was bleeding. It was wrapped in Mr. Roach’s bandana at the scene and pressure was applied.
34. Mr. Border’s walked under his own power to the mine manager’s EMU, a four-wheeled electric vehicle that was driven by Mr. Genesio.
35. On the ride from Unit 2 to the surface, Mr. Genesio stopped at the dinner hole and obtained additional bandages that were used to treat Mr. Border’s arm injury.
36. Mr. Genesio did not observe significant blood loss while driving Mr. Borders out of the mine.
37. Mr. Broders never lost consciousness and was able to converse normally with Mr. Genesio during the ride out of the mine.
38. They reached the surface at approximately 3:14 am.
39. An ambulance was present when Mr. Borders reached the surface.
40. Mr. Borders retrieved his cell phone after reaching the surface. It was in his basket in the bath house, which he raised and lowered two times without assistance. The basket when full weighs nearly 20 pounds and requires a miner to pull a chain to raise the basket into position.
41. Mr. Borders received the following
injuries: a broken left wrist, a laceration to his upper left arm that required 25 stitches and multiple
abrasions to his body, including
his head. He was treated and released at
the
42. On May 16, 2011, at 05:10 am, MSHA issued a verbal 103(j) Order.
43. The 103(j) Order was modified at 06:28 am
to a 103(k) Order upon MSHA’s arrive (sic) at
44. Mr. Borders returned to work on third shift Tuesday night, May 17, 2011 at 11:00 pm on restricted duty.
45. On the morning of May 18, 2011 Mr.
Borders was interviewed by MSHA and
46. 104(a) Citation 8428712 was issued on May 19, 2011.
STIPULATIONS OF FACT WITH
RESPECT TO CITATION NO. 8428712
1. Citation No. 8428712 alleges that Big Ridge violated Order No. 8424291, an Order issued under Sections 103(j) and 103(k) of the Act.
2. Big Ridge has argued in past filings that Order No. 8424291 is invalid.
3. After considering Big Ridge’s Motion to Dismiss, the Secretary’s Response, and Bid Ridge’s Motion for Reconsideration, the Administrative Law Judge found Order No. 8424291 to be valid.
4. Big Ridge maintains its position that Order No. 8424291 is invalid and preserves that argument for appeal. However, to the degree that Order No. 8424291 is valid, the parties stipulate that a violation of that Order occurred as alleged in Citation No. 8428712 and that the proper negligence designation for such violation is high negligence.
ISSUES
The issues before me are: 1) does the Secretary have the authority to issue 103(j) and 103(k) orders in incidents involving no need for rescue and recovery; 2) did the Secretary reasonably exercise her authority in the case sub judice in its issuance of 103(j) Order No. 8424291 and subsequent 103(k) order modifications; 3) should Contestant’s notice of contest be dismissed and Citation No. 8428712 be affirmed as stipulated.
FINDINGS OF FACT AND
CONCLUSTIONS OF LAW
A. Does the Secretary have the authority to issue 103(j) and 103(k) orders in incidents where rescue and recovery are not necessary?[6]
Contrary to the Contestant’s assertions otherwise, I find that the triggering event for the issuance of a 103(j) order is the occurrence of an “accident” as that term is defined in Section 3(k) of the Act.[7]
The formula
for statutory interpretation in Commission cases is well-known: the ALJ must first examine the plain
meaning of the statutory terms; if any ambiguity exists, deference is to be
afforded to the Secretary’s reasonable interpretations of such. See
Chevron
Inter alia, the Contestant argues that the Secretary’s power to issue 103(j) and 103(k) orders is limited to situations involving rescue or recovery. While conceding that “rescue and recovery” are not defined in the Act at 30 U.S.C. § 803, Contestant argues that the events stipulated to sub judice would not meet the definition of “rescue and recovery” in the United States Bureau of Mines’ Dictionary of Mining Terms (1968). (See also Exhibit A attached to Contestant’s Motion to Dismiss Order No. 8424291 and Citation No. 8428712 at 5-8)
As shall be discussed infra, I find that the roof fall and associated miner’s injury that took place on May 16, 2011, constituted an “accident” which statutorily authorized the Secretary to issue a 103(j) order. However, I must also observe that the stipulated facts arguably fall within the definition of “rescue” in the Dictionary of Mining Terms at 913 stating, “to move men or dead bodies from a mine after a mine disaster. Sometimes called recover.”
Here, after
the roof collapse, fallen rock had to be removed from Tom Borders, the injured
miner, by Mr. Markham and Mr. Roach.
Borders had to be helped to his feet.
See Stip No. 32 above.[8] Mine manager Genesio drove (moved) Borders to
the surface in a four-wheeled electric vehicle.
After receiving treatment at the scene and on the way to the surface,
Border was driven (moved) by ambulance to
Regardless, however, of whether the within roof fall and miner’s injury meet Contestant’s suggested standard for rescue and recovery, I find that the clear statutory language of § 103(j), given the stipulated facts of this case, authorized the Secretary to issue a 103(j) order.
Sections 103(j) and 103(k) of the Act provide as follows:
In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof. For the purposes of the preceding sentence, the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred. In the event of any accident occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.
30 U.S.C. § 813(j)(emphasis added).
In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, 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, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such a mine or to recover the coal or other mine or to return affected area of such mine to normal.
30 U.S.C. § 813(k).
Order No. 8424219 states as follows:
A non-fatal accident on Unit #2 on 5/16/2011 at approximately 0315 hours. This Order is being issued under Section 103(j) of the Federal Mine Safety and Health Act of 1977 to prevent the destruction of any evidence which would assist in investigating the cause or causes of the accident. It prohibits all activity in the area of the Unit #2 where the accident occurred until MSHA has determined that it is safe to resume normal operations in this area. This order was initially issued verbally to Tom Benner, Director of Midwest Operations at 0510 hours and has now been reduced to writing.
See Exhibit A attached to Contestant’s Notice of Contest.
Contestant essentially argues that the term “accident in § 103(j) should be construed as an event involving “the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death […]” See Contestant’s Motion to Dismiss 11-12 (quoting 30 U.S.C. § 813(k)). However, as the Secretary correctly observes, this contention has no basis in any Commission precedent and flies in the face of the plain language of the Act’s definition section. See Secretary’s Response to Contestant’s Motion to Dismiss at 9.
The term
“accident” as set forth at § 3(k) of the Act includes a mine explosion, mine
ignition, mine fire, or mine inundation, or
injury to, or death of any person.
30 U.S.C. § 803(k). The plain
language of § 103(d) of the Act specifies that an unplanned roof fall is an
accident for purposes of Section 103. Emerald Coal Resources, LP, 30 FMSHRC
122, 124 (2008)(ALJ). The roof fall did
not occur in an abandoned panel or inaccessible area so as to preclude 103(d)
applicability. It is uncontroverted that
there was an unplanned roof fall at
It is further uncontroverted that a miner suffered an injury at Contestant’s mine on May 16, 2011 due to said roof collapse. The miner was required to undergo emergency treatment at the scene and later hospital treatment for a fractured wrist, laceration to the upper arm requiring twenty-five stitches and multiple abrasions to the body and head. Stip. Nos. 33, 35, 41. Such an unplanned fall and injury clearly constituted an “accident” that required the mine operator to notify “the Secretary thereof” so that appropriate measures could be taken “to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof.” 30 U.S.C. 103(j).
Contestant’s proposed restrictions on the Secretary’s authority to issue § 103(j) orders so as to prevent the destruction of property and allow proper investigation of accident causation would patently defeat the general protective purpose of the Act. See 30 U.S.C. § 802. Such a misguided statutory construction would lead to an unconscionable vitiation of the Secretary’s authority. Extremely untoward incidents could take place, i.e. roof collapses, explosions, floods, machinery malfunctions, etc, but the Secretary would be unable to investigate and perhaps prevent the recurrence of such, simply because no rescue or recovery was needed during the event.
I find
that, contrary to Contestant’s assertions otherwise, the language in § 103(j)
“the death of an individual at the mine, or an injury or entrapment of an
individual at the mine which as reasonable potential to cause death” was
plainly meant to describe the type of accident which would require notification
to the Secretary within fifteen minutes.
Said description was never intended to limit the Secretary’s authority
to investigate other types of accidents or to take any appropriate steps to
insure safety. (See inter alia, S. Rep.
No. 109-365 at 9 (2006) for Congress’s expressed intention in this regard. “The Committee intends the 15 minute
requirement to apply only to accidents […] that involve the death of an
individual at the mine, and those that involve an injury or entrapment of an
individual at the mine which has a reasonable potential to cause death.”
In a recent
decision, Jim Walter Resources, Inc.
(“JWR”), Administrative Law Judge Moran addressed the issue of the Secretary’s
authority to issue orders under § 103(j).
Inter alia, the mine operator, as here,
contended that the 103(j) and 103(k) orders were unlawful in that such could
“only be issued when rescue and recovery work is necessary.
In JWR, ALJ
Moran further noted Contestant’s misunderstanding in failing to recognize that
MSHA, not the mine operator, is charged with enforcement of the Mine Act.
In fact, this particular case illustrates exactly why operators are not giving statutory authority to choose their own course of action. Although the Secretary issued Order No. 8424291 due to the roof fall, Respondent not only failed to preserve evidence at the accident site, it continued to mine in the exact area of the roof fall for a an additional two feet in entry number 10 and removed approximately five feet of the number 10 entry for a distance of approximately eighteen feet squaring the face. See Citation No. 8428712. Not only did it completely disregard the 103(j) order, it disregarded the safety of the miners who continued to mine after its issuance.
B. Did the Secretary reasonably exercise her authority in issuing Order No. 8424291 in this case?
Based upon the foregoing analysis, the ALJ also finds that the Secretary reasonably exercised her authority under the Act in issuing Order No. 8424291 in this particular instance. Due to a roof fall, a miner was injured, received treatment at the mine and had to be taken offsite for further medical treatment. At the time that the 103(j) order was issued, the MSHA representative had no other tool in which to insure the preservation of the scene.[9] Upon arriving, this was modified to a 103(k) order to ensure that no other miners were injured to due the unsupported and dangerous roof conditions. As such, the undersigned finds that issuance of the Order is reasonable.
Moreover,
there is some case law to suggest that the standard by which the Secretary’s
actions should be reviewed is “arbitrary and capricious.” In Pattison
Sand Company, LLC, ALJ McCarthy explained that “this standard appropriately
respects the Secretary’s judgment while allowing review for abuse of
discretion, errors of law, and review of the record under the substantial
evidence test.”
In the instant case, MSHA was contacted about a roof fall that resulted in the injury of a miner. Due to this, Inspector Fazzalare issued a 103(j) order to insure the preservation of the accident scene. Upon his arrival at the mine, the 103(j) order was then modified to a 103(k) order in order to insure the safety of the miners at the mine until such time that a complete investigation of the cause(s) of the roof fall could be investigated. I find that there is clearly a rational connection between the facts found and the choices subsequently made by the inspector and, as such, the Secretary’s actions were not arbitrary and capricious.
C. Should Contestant’s notice of contest be dismissed and Citation No. 8428712 be affirmed as stipulated?
Considering
the specific stipulated-to circumstances of the accident discussed here and
given the foregoing findings which support that the Secretary properly and
reasonably exercised her authority in seeking to maintain the integrity of the
accident scene, Contestant’s contest of the Secretary’s 103(j) and 103(k)
orders should be dismissed. Citation No.
8428712 is affirmed pursuant to the stipulations of the parties.
ORDER
Given that the undersigned has found that the Secretary has authority of issue 103(j) and 103(k) orders in cases involving accidents and that the 103(j) order was reasonably issued in this case, it is hereby ORDERED that Contestant’s Notice of Contest is DISMISSED, Order No. 8424291 is AFFIRMED and, therefore, Citation No. 8248712 is AFFIRMED, as stipulated.
/s/
John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution:
Suzanne F. Dunne, Esq., and Kevin Wilemon, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Room 844, Chicago, IL 60604
R. Henry Moore, Esq., and Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222
[1] See Exhibit A attached to Contestant’s Motion to
Dismiss.
[2] This Order was incorrectly titled Order Denying Respondent’s
Motion to Dismiss, rather than Order Denying Contestant’s Motion to
Dismiss.
[3] On January 28, 2012, the Secretary filed her Motion
in Opposition to such.
[4] See Joint
Stipulations of fact with respect to Citation No. 8487712 filed on February 29,
2012.
[5] See also
Exhibit A attached to Contestant’s Motion to Dismiss.
[6] I have already, in brief, addressed this issue in
prior denials of Contestant’s motions for dismissal and reconsideration. I hereby incorporate the rationales therein
without a full recitation thereof in the within discussion.
[7] “Accident includes a mine explosion, mine ignition,
mine fire or mine inundation, or injury to, or death, of any person.” 30 U.S.C. § 813(k).
[8] “Stip. No.” indicates the stipulations of fact
entered by the parties.
[9] It is noted that the parties were unable to reach an
agreement as to whether Mr. Borders was standing under supported or unsupported
roof when struck by the falling material.
Stip. No. 31. Arguably, this
uncertainty would be another factor justifying preservation of the accident
scene pending MSHA inspection and investigation.