FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue N.W. Suite 520 N

Washington, D.C. 20004-1710

(202) 434-9933

December 13, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner, 

 

v.

 

CONSOLIDATION COAL CO., 

Respondent.

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CIVIL PENALTY PROCEEDING:

 

Docket No. WEVA 2011-940

A.C. No. 46-01968-243606

 

Mine: Blacksville No. 2

 

 

 

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTIONS

AND DENYING RESPONDENT’S MOTION TO COMPEL

 

 

This Civil Penalty Proceeding arises under § 105 of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 815.  The case is scheduled to be heard in Morgantown, West Virginia beginning on Wednesday, January 23, 2013 at 8:30 a.m.  At issue are one order and two citations.  Order No. 8025378 was issued for a violation of 30 C.F.R. § 75.202(a); the proposed penalty is $50,700.[1] Pet’r’s Ex. A. Citations Nos. 8025516 and 8025562 were issued for violations of 30 C.F.R. § 75.220(a)(1); the proposed penalty for each citation is $1,900.[2] Id.  The Secretary filed five motions in this matter- a motion to amend, a motion for adverse inference, a motion in limine to preclude any argument regarding whether violations of “Rules To Live By” standards are specially assessed as a matter of course, a motion in limine to exclude photographs, and a motion to permit leading questions.  The Respondent filed a motion to compel a response by the Secretary to the Respondent’s second set of interrogatories.  For the reasons that follow, the Court will grant the Secretary’s motions to amend and to permit leading questions and will deny the Secretary’s other three motions.  The Court also will deny the Respondent’s motion to compel.             

 

The Secretary’s first motion seeks to increase the negligence designation of Order No. 8025378 from high negligence to reckless disregard and correspondingly increase the proposed penalty from $50,700 to $70,000.  Pet’r’s Mot. To Amend, 1-4. Order No. 8025378 was initially assessed as being a result of the Respondent’s high negligence and unwarrantable failure to comply with a mandatory standard. Id. at 1.  The Secretary argues that this motion is not prejudicial to the Respondent since the facts the Secretary would present at the hearing to prove reckless disregard are the same facts the Secretary would have presented to prove high negligence and unwarrantable failure. Id. at 3.  The Commission has stated that leave to amend is to be freely granted in the interest of justice so long as the party opposing leave is not prejudiced. Secretary of Labor v. Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).  The Respondent may be prejudiced if it is given inadequate notice of the Secretary’s motion.  The Secretary’s motion was originally submitted on October 15, 2012, fifteen days prior to the hearing scheduled for October 30, 2012.  However, a subsequent postponement of the hearing date from October 30, 2012 to January 23, 2013 has served to cure any issue of inadequate notice. Consolidation Coal Co. (Order Rescheduling Hearing), Docket No.  WEVA 2011-940 (October 31, 2012).  Accordingly the motion to amend the petition is GRANTED.

 

The Secretary’s second motion seeks an adverse inference against the Respondent as a remedy for the Respondent’s alleged spoliation. Pet’r’s Mot. for Adverse Inference, 1.  The Respondent failed to provide photographs of the hazard cited in Order No. 8025378 (the photographs were taken on June 22, 2010 during the relevant inspection of the mine), and failed to provide the pre-shift and on-shift exam records of June 4, 2010 to June 18, 2010 of the hazardous area. Id. at 3.  The Secretary seeks an adverse inference that the photographs and shift exam records would demonstrate the existence of the hazard in order to counter the Respondent’s argument that no hazard existed in the cited area. Id. at 1-3.  The Secretary argues that spoliation results from negligent failure to preserve evidence or intentional destruction of evidence and that an adverse inference is an appropriate remedy for spoliation. Pet’r’s Mem. Of Law in Supp. of Mot. For Adverse Inference, 4-5.  The Secretary claims that the Respondent had an obligation, beginning on June 26, 2010 (when Respondent submitted a request to conference with MSHA regarding the negligence designation of the Order), to preserve the photographs and shift exam records. Id. at 6.  The Respondent disputes the legal standard for spoliation, claiming that spoliation results only from intentional destruction of evidence, not negligent failure to preserve evidence. Consol’s Resp.  To the Sec.’s Mot. For Adverse Inference, 9.  The Respondent disputes when it had an obligation to preserve the documents. Id. at 14-15.  The Respondent also disputes other allegations by the Secretary regarding this motion.  Disputes regarding the legal standard for spoliation, when the Respondent had an obligation to preserve the documents, and other evidentiary matters are better resolved during trial than on a pre-trial motion.  Indeed, the purpose of a hearing is to resolve disputed legal and factual issues that bear on the issue at hand. Therefore, the Secretary’s motion for an adverse inference is DENIED.

 

The Secretary’s third motion seeks to preclude any argument or evidence by the Respondent regarding whether violations of “Rules To Live By” (“RTLB”) standards are specially assessed as a matter of course. Pet’r’s Mot. to Preclude any Arg.  On Rules to Live By Standards, 1.  The two standards at issue in this matter, 30 C.F.R. §§ 75.202(a) and 75.220(a)(1), are both included in MSHA’s RTLB Initiative.[3] Earlier in this matter, the Respondent submitted a motion to compel discovery seeking to force the Secretary to release data regarding the number of alleged violations of these two standards that were specially assessed on a national and district wide level since implementation of the RTLB Initiative.  The Respondent claimed that it needed this data for its argument that violations of RTLB standards are specially assessed as a matter of course, and therefore the RTLB Initiative is a substantive rule that requires notice and comment rule-making. Consolidation Coal Co. (Order Requesting Information and Rulings on Motions to Compel), slip op. at 4-5, Docket No. WEVA 2011-940 (June 15, 2012).  However, in its Order of June 15, 2012, the Court denied the Respondent’s motion to compel discovery regarding the number of alleged violations of the two standards that were specially assessed. Id.  In the Order, the Court stated that it was not disposed to entertain an argument that the RTLB Initiative is a substantive rule requiring notice and comment rulemaking since such an issue is outside the bounds of a civil penalty case. Id.  Therefore, the Court will not consider any argument regarding whether RTLB standards are specially assessed as a matter of course.  The Secretary’s motion is superfluous as the issue has been previously resolved in the Secretary’s favor.  Therefore, the motion is DENIED.

 

            The Secretary’s fourth motion seeks to exclude photographs taken by the Respondent’s employees of the hazardous area cited in Order No. 8025378. Pet’r’s Mot. to Exclude Photos Taken in 12/ 2011, 1.  The Secretary makes this motion in anticipation of the Respondent introducing photographs taken in December 2011, a year after the June 22, 2010 inspection of the cited area, to demonstrate that the cited area did not contain the cited hazard. Id. at 2.  The Secretary contends that the 2011 photos fail to accurately represent the condition of the hazard observed in 2010 due to the operator’s corrective action and geological processes which occurred during the intervening year. Mem. Of Law in Supp. Of Pet’r’s Mot. to Exclude Photos, 6.  The Court finds that the photographs taken by the Respondent’s employees in December 2011 of the cited area are relevant as they are a representation of the cited area.  While their probative value may be minimal, the Secretary can challenge the evidence’s probative value during the hearing. Therefore, the motion is DENIED.

 

The Secretary’s fifth motion asks the court to permit the Secretary, at hearing, to ask leading questions, without a threshold showing of actual hostility, of the Respondent’s employees during the Secretary’s direct examination. Pet’r’s Mot. To Permit Leading Questions, 1.  In this court, leading questions are routinely allowed on direct examination of an opposing party’s witnesses.  Therefore, the motion is GRANTED.

 

The Respondent has filed a motion to compel response to its second set of interrogatories. Mot. To Compel Resp. to Resp’t’s Second Interrogs., 1.  The Court ordered the Secretary on July 6, 2012 to disclose the information in the Special Assessment Review (“SAR”) forms to the Respondent. Consolidation Coal Co. (Recognition of Compliance and Order to Produce Forms), slip op. at 3, Docket No. WEVA 2011-940 (July 6, 2012).  However, in this motion the Respondent seeks the identity of the individual who made the final decision to use special assessments for the three violations and his basis for making such special assessments.  The Respondent distinguishes between the recommendations of the inspector, his supervisor, the assistant district manager and the district manager (information present in the SAR forms) and the final binding decision of an upper level decision-maker (information absent from the SAR forms). Mot. To Compel Resp. to Resp’t’s Second Interrogs., 5-6.  The Secretary opposes the motion arguing that disclosing the basis for this individual’s decision would necessarily involve a disclosure of the policy reasons behind the Secretary’s choice of using special assessments for certain standards. Mem. Of Law in Supp. of Pet’r’s Resp., 11-12.  The Court finds that by disclosing the information within the SAR forms to the Respondent, the Secretary has disclosed the factual basis for the special assessment of the violations. Consolidation Coal Co. (Recognition of Compliance and Order to Produce Forms), slip op. at 3, Docket No. WEVA 2011-940 (July 6, 2012).  Moreover, the enforcement priorities of an upper level decision-maker are irrelevant to this proceeding.  Therefore, the motion is DENIED.

                                                     

Accordingly, the Secretary’s Motion to Amend and her Motion to Permit Leading Questions are GRANTED.  The Secretary’s Motion for Adverse Inference, Motion to Preclude Argument on Rules To Live By Standards, and Motion to Exclude Photographs are DENIED. The Respondent’s Motion to Compel Response to Respondent’s Second Set of Interrogatories is DENIED.

                                                                                                             

 

                                                                       

 

                                                            /s/ David F. Barbour              

                                                            David F. Barbour

                                                            Administrative Law Judge

 

 

Distribution:

 

Bryan C. Shieh, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA    19106

 

Patrick W. Dennison, Esq., R. Henry Moore Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA    152222

 

/DM

 


[1] 30 C.F.R. § 75.202(a) requires an operator to support or otherwise control the roof, face and ribs of areas where persons work or travel so as to protect the persons from falls of the roof, face or ribs and from coal and rock bursts.           

[2] 30 C.F.R. § 75.220(a)(1) requires an operator to adopt and follow a roof control plan approved by MSHA.

[3] In pertinent part the Initiative states, "Rules to Live By" is an initiative to improve the prevention of fatalities in mining. Through a first phase of industry outreach and education followed by enhanced enforcement, the focus will be on 24 frequently cited standards. Rules to Live By (last visited November 19, 2012), http://www.msha.gov/focuson/RulestoLiveBy/RulestoLiveByI.asp