FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

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

Washington, D.C. 20001

April 20, 2012

ORDER GRANTING MOTION TO AMEND

ORDER DENYING MOTION FOR PARTIAL SUMMARY DECISION

            This case is before upon the Notice of Contest of Jim Walter Resources, Inc. (“JWR”), and the Secretary’s Petition for the Assessment of Civil Penalty pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815. On January 19, 2012, I issued my Notice of Hearing and Order to File Prehearing Report scheduling this matter for hearing on May 1 and 2, 2012. Two pretrial issues are before me. First, the Secretary filed her Motion to Amend to Cite Standard in the Alternative on December 16, 2011 (“Motion to Amend”). On April 16, 2012, the Secretary renewed her Motion by filing her Amended Motion to Amend to Cite Standard in the Alternative (“Amended Motion to Amend”). JWR did not submit responses to either of the Secretary’s Motions.

            The second issue before me is Contestant JWR’s April 5, 2012, Motion for Partial Summary Decision (“MPSD”) seeking dismissal of the section 107(a) imminent danger order contested in Docket No. SE 2010-581-R. The Secretary filed her response to the Motion on April 19, 2012. For the reasons set forth below, the Secretary’s Motion to Amend is GRANTED and JWR’s Motion for Partial Summary Decision is DENIED.

I. Motion to Amend

            The Secretary’s Motion to Amend seeks to revise the cited standard of Citation No. 6698187 in Docket No. SE 2010-760 from 30 C.F.R. § 75.204(c)(1) to § 75.202(a). (Mot. Amend 1.) The Secretary submits that § 75.202(a) more accurately addresses the cited conditions. (Id.) She does not seek to change her factual pleadings and asserts that the facts, evidence, and witnesses involved in this matter remain the same. (Id.)

            The Commission analogizes the amendment of citations to Federal Rule of Civil Procedure 15(a), which states that leave for amendment “shall be freely given when justice so requires.” Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Fed. R. Civ. P. 15(a)). Only bad faith of the moving party, purposeful delay, or legal prejudice should bar such amendments. 14 FMSHRC at 1290 (citing Cyprus Empire Corp., 12 FMSHRC 911 (May 1990); 3 J. Moore & R. Freer, Moore’s Federal Practice ¶ 15.08[2], 15-47 to 15-49 (2d ed. 1991)).

            Here, the Secretary has established good cause to amend the cited standard of Citation No. 6698187. JWR has not shown any legal prejudice that would preclude amendment of the citation. JWR’s only mention of either of the Secretary’s Motions can be found in a footnote to its April 16, 2012, Amended Prehearing Report. There, JWR notifies the Court it “will submit a more formal opposition” if the parties are unable to settle the citation prior to the hearing. (Am. PHR 1 n.1.) No purposeful delay is evident or alleged. Accordingly, it is ORDERED that the cited standard of Citation No. 6698187 be amended to 30 C.F.R. § 75.202(a).

II. Motion for Partial Summary Decision

            In its Motion for Partial Summary Decision, JWR seeks dismissal of Docket No. SE 2010-581-R involving its contest of Order No. 6698547. MSHA Inspector John Terpo issued this order on February 18, 2010, during his inspection of JWR’s No.7 Mine. As Inspector Terpo examined the No. 2 Longwall Section Face, he saw a miner walk in the conveyor pan line along the longwall face and issued the order. (Notice of Contest, Attach. A.) Order No. 6698547 specifically alleges:

A replacement shield hydraulic jack leg was located at the No. 9 shield on the No. 2 Longwall Section face. The shield was advanced in the walkway area to the conveyor pan line to the extent that there was little or no clearance for personnel to travel due to the jack leg. A miner walking from the headgate side down the face was observed climbing into the conveyor pan line cable troth at shield 9 in order to get down the face. Once clearing the shield with the replacement jack leg he stepped back into the walkway. The shearer was advancing down the face at this time and the conveyor chain was transporting coal and rock. An oral 107(a) imminent danger order was issued to John Hamilton, Section Foreman at 0940 hours.

(Id.)

            JWR argues the undisputed facts of record establish that Inspector Terpo abused his discretion in issuing Order No. 6698547. According to JWR, Inspector Terpo improperly issued the Order after the alleged imminent danger had passed. (MPSD 7–12.) JWR also asserts that Inspector Terpo reacted impulsively to the miner’s walk through the conveyor pan and failed to conduct a reasonable investigation prior to issuing the Order. (Id. at 12–14.) JWR further argues that the hazardous risks associated with the conditions cited by Inspector Terpo did not rise to the degree of imminence required by the imminent danger standard. (Id. at 14–18.)

            The Secretary responds that significant factual discrepancies remain and summary decision is not appropriate. (Resp. MPSD 1–5.) The Secretary further argues that Inspector Terpo issued the Order contemporaneously with the allegedly dangerous condition he observed. (Id. at 5–8.) Finally, the Secretary argues that Inspector Terpo had a reasonable basis upon which to issue the Order. (Id. at 8–10.)

A.        Standard for Granting Summary Decision

            Under Commission Rule 67, “A motion for summary decision shall be granted only if the entire record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b).

            The Commission “‘has long recognized that [] ‘summary decision is an extraordinary procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the evidence in “‘the light most favorable to . . . the party opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

B.        Standard of Review for Imminent Danger Orders

            Section 107(a) of the Mine Act states:

If, upon any inspection or investigation of a coal or other mine which is subject to this chapter, an authorized representative of the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, except those referred to in section 814(c) of this title, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist.

30 U.S.C. § 817(a). The Mine Act defines an “imminent danger” as “any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” Id. § 802(j). More specifically, “‘an imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated.’” Rochester & Pittsburgh Coal Co. (R&P Coal), 11 FMSHRC 2159, 2163 (Nov. 1989) (emphasis in original) (quoting Eastern Assoc’d Coal Corp. v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974)). The hazardous condition must have “a reasonable potential to cause death or serious injury within a short period of time.” Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991).

            Because an inspector must act immediately in response to an imminently dangerous condition or practice, the Court must measure the validity of an imminent danger order under the abuse of discretion standard. R&P Coal, 11 FMSHRC at 2164 (quoting Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 31 (7th Cir. 1975). Though the Court must afford wide discretion to an inspector’s judgment, “the reasonableness of an inspector’s imminent danger finding is subject to subsequent examination at [an] evidentiary hearing.” Island Creek Coal Co., 15 FMSHRC 339, 346–47 (Mar. 1993). The inspector’s decision must be reasonable in light of the information available to him or her at the time the order is issued. Cumberland Coal Res., LP, 28 FMSHRC 545, 558 (Aug. 2006); Island Creek Coal, 15 FMSHRC at 348. An imminent danger order does not require an underlying violation of a mandatory health or safety standard to be valid. Cyprus Empire, 12 FMSHRC at 918.

C.        Analysis and Conclusions of Law

            In the case before me, JWR argues that no issues of material fact remain surrounding the imminent danger order. According to JWR, “It is undisputed that the present [imminent danger order] was exclusively based on [the miner’s] act of stepping onto the cable trough. It is also undisputed that the [imminent danger order] was issued after [the miner] withdrew himself from the cable trough and any danger he faced while on it.” (MPSD 11 (emphasis in original).) In short, JWR criticizes the order because it was based solely on the miner’s transgression, rather than a comprehensive view of the mine’s conditions. JWR also believes the order was improperly issued because it came after the miner had left the longwall conveyor pan.

            JWR’s contentions do not have a basis in undisputed material fact. The Secretary points to evidence supporting her view that Inspector Terpo based his imminent danger order on multiple factors, including the operation of the longwall equipment as well as concern for the other miners on the section. (Resp. MPSD at 3; MPSD Gov’t Ex. 7 at 95:19–97:22, 110:6–9, 116:4–11.) A close reading of Inspector Terpo’s deposition testimony also demonstrates that the precise timing of the issuance of his imminent danger order is not clear-cut. (MPSD Gov’t Ex. 7 at 101:6–102:3, 107:14–108:2.) The miner’s walk through the conveyor pan did not take long, and Inspector Terpo did not indicate precisely how his order fit into this chain of events. (Id.) The noisy environment in which Inspector Terpo initially issued his Order, which was orally, further muddies the analysis. (Id.) A hearing is necessary so I can conduct a proper credibility determination of the evidence.

              JWR also asserts that the imminent danger order resulted from Inspector Terpo’s impulsive reaction, as opposed to a reasonable investigation of the circumstances. (MPSD 12–14.) JWR bases its criticism on the fact that Inspector Terpo could not identify a violation at the time he issued the Order. (Id.) This argument fails as a matter of law. An imminent danger order need not involve the violation of a mandatory standard. Cyprus Empire, 12 FMSHRC at 918. The order merely needs to involve a practice or condition associated with the reasonable potential to cause death or serious injury within a short period of time. Utah Power & Light, 13 FMSHRC at 1622.

            Finally, JWR argues that Inspector Terpo did not establish a sufficient level of imminent danger that could justify the Order. (MPSD 14–18.) The Commission has recognized that “[w]ithout considering the ‘percentage of probability that an accident will happen,’ the inspector must determine whether the condition presents an impending threat to life and limb.” Utah Power & Light, 13 FMSHRC at 1622 (quoting S. Rep. No. 95-181, at 35 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3438). Inspector Terpo identified a number of ways a serious or fatal injury could have resulted from this condition. (MPSD Gov’t Ex. 7 at 96:3–97:22.)

            Significant issues of material fact remain with respect to Order No. 6698547 issued pursuant to section 107(a). I conclude that the record before me does not support summary decision of Order No. 6698547. Accordingly, JWR’s Motion for Partial Summary Decision is DENIED.

                                                                        /s/ Alan G. Paez

                                                                        Alan G. Paez

                                                                        Administrative Law Judge

Distribution: (Via Electronic Mail & U.S. Mail)

Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW, Room 7T10, Atlanta, GA 30303

John B. Holmes, III, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400 Regions/Harbert Plaza Birmingham, AL 35203

/jts