FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1710

Telephone: (202) 434-9900 Fax: (202) 434-9949

June 12, 2013

DECISION

Appearances:  Sophia Haynes, United States Department of Labor, Office of the Solicitor, Atlanta, GA, for Petitioner.

John B. Holmes, III and Josh Bennett, Maynard, Cooper & Gale, P.C., Birmingham, AL, for Respondent.

Before:           Judge L. Zane Gill

            This case deals with a single 104(a) citation issued by an inspector for the Mine Safety and Health Administration (“MSHA”) on October 26, 2009, involving the mine property identified above. Citation Number 7699497 alleges a violation of the mandatory standard found at 30 C.F.R. § 75.380(d) (1). Counsel for the Secretary of Labor made a motion during the hearing to amend the citation to allege a 104(d) violation, citing Federal Rule of Civil Procedure 15, and Commission Procedural Rule 2700.10.

            The case was heard on April 10, 2012 in Birmingham, Alabama.

            For the reasons discussed below, I deny the Secretary’s Motion to Amend and conclude that Respondent was in violation of 30 C.F.R. § 75.380(d) (1), as originally alleged, and impose the civil penalty originally proposed in the Secretary’s Petition.

Findings of Fact

            Stipulations

            The parties submitted the following stipulations at the hearing, (See Ex. S-7):

            1.         Respondent, Jim Walter Resources, also known as JWR, is subject to the Mine Safety Health Act of 1977, as amended.

            2.         The Administrative Law Judge has jurisdiction to hear and decide this case pursuant to Section 105 of the Act of 1977.

            3.         On October 26, 2009 MSHA Inspector Gregory Willis was acting in his official capacity when he issued to Respondent JWR Citation No. 7699497.

            4.         Citation No. 7699497 contained in this docket was served on JWR or its agent as required by the Act.

5.         Citation No. 7699497 contained in this docket is authentic and may be admitted into evidence for purposes of establishing its issuance but not for the purpose of establishing the accuracy of any statements asserted therein.

6.         The Administrative Law Judge has the authority to assess the appropriate civil penalty under Section 101(i) of the Act if he finds that the citations at issue state a violation of the Act and the regulations.

7.         The operator demonstrated good faith abatement of Citation No. 7699497.

8.         The area coursing from the North Mains to the 7-11 escape hoist shaft cited by Inspector Gregory Willis in Citation No.7699497 was an alternate escapeway for JWR No. 7 Mine on October 26, 2009.

9.         JWR No. 7 Mine was subject to spot inspections for methane under Section 103(I) of the Mine Act on October 26, 2009.

10.       JWR timely contested Citation No. 7699497 contained in this Docket and timely served a corresponding answer to the Proposal of the Secretary of Labor and MSHA for Assessment of Civil Penalty.

            11.       Respondent JWR is a large coal operator reporting 3,187,772 tons of coal in 2008.

            Fact Summary

            The Jim Walter Resources (“JWR”) No. 7 Mine (“the mine”) produces bituminous coal. (Tr. 16:6-8) On October 26, 2009, MSHA Coal Mine Inspector Greg Willis (“Willis” or “Inspector Willis”) conducted a regular inspection of the mine. (Tr. 16:24-17:1) Before entering the mine, Willis reviewed the record books at the surface. (Tr. 17:23-18:3) His inspection focused on the secondary escapeway/return aircourse of the North Mains. (Tr. 18:4-7) He was accompanied by a JWR supervisor, Ricky Parker, and a union representative, Mr. Ross. (Tr. 18:10-13) Willis went to the No. 3 section, right side, and entered the return air course. (Tr. 18:20-19:4) There he inspected the ventilation and general condition in the entry, including the condition of the escapeway and lifeline. (Tr. 19:5-13) At the time of the inspection, the alternate escapeway was approximately 4,700 feet long, 20 feet wide, and 7 to 10 feet high. (Tr. 102:21-103:1, 25:3-8) The accumulation of water was located some 3,500 to 4,000 feet outby and approximately 700 to 1,200 feet from the escape hoist at the end of the escapeway. (Tr. 105:6-13). Willis observed a 52 foot section of escapeway that was covered rib-to-rib by water ranging from 1 to 11 inches in depth. (Tr. 25:9-26:6) The water was clear; the bottom was clearly visible. (Tr. 20:1-3, 25:9-26:6) The bottom was otherwise smooth and good. (Tr. 66:9-67:2) There were no slip or trip hazards under the water. (Tr. 66:9-67:2, 106:3-19) A pump line was present in the area to be used when and if necessary. (Tr. 107:7-8)

            Willis and Parker testified that they followed the lifeline through the water accumulation and never encountered water at or over the tops of their 14 to 16 inch high boots. (Tr. 26:4-24, 69:25-70:15, 108:8-21) The men slowed down as they waded through the pool. Parker testified that he had no problem walking through it. (Tr. 109:5-25) Willis stated that he slowed down, but that he usually goes slowly when he conducts an inspection. (Tr. 27:11-21, 75:3-20)

            Willis concluded that the water accumulation constituted a hazard. (Tr. 26:21-27:1) He told his companions that he would cite JWR under 30 C.F.R. § 75.380(d) (1) (Tr. 20:4-25), which covers maintenance of escapeways in bituminous and lignite mines. (Tr. 22:11-17) In Willis’ opinion, the flooding created a slip or trip hazard that could cause sprains, strains, or pulled muscles. (Tr. 46:21-25) The water in the escapeway was the only basis for the citation. Willis alleged moderate negligence based on his understanding that return air passages must only be inspected relatively infrequently–every seven days–which he considered a mitigating factor. (Tr. 51:7-52:3) He assumed that the water had been in the condition he observed for up to three days. (Tr. 52:17-25) He saw no indication that JWR had done anything to remove the water (Tr. 53:1-4) and concluded that the hazard was extensive and obvious. (Tr. 52:4-16) Willis was aware that JWR had been cited for violating the same mandatory standard before and factored that into his assessment of the violation. (Tr. 53:5-13) JWR abated the violative condition within a few hours by installing a pump and removing the water from the escapeway. (Tr. 54:21-55:3, 73:7-9) Willis rated this hazard as unlikely to cause injury. (Tr. 75:21-24, Ex. S-1) Willis’ supervisor reviewed and approved the citation without change. (Tr. 59:19-61:1)

            At hearing, JWR called Scott Hannig as a witness. Hannig testified that clear water at such a depth would neither hinder the passage of four miners carrying another miner on a stretcher nor come into contact with the stretcher. (Tr. 89:11-20) Hannig stated that there is no official regulation as to how much water accumulation is necessary before it constitutes a hazard, however, he is aware of a rule-of-thumb used in mine rescue exercises that anything less than knee deep is considered passable. (Tr. 87:8-25) Hannig testified that accumulated water below boot-top level over an obstruction-free bottom would not hinder the evacuation of a section crew or a disabled miner. (Tr. 89:11-20)

            Evidence Relating to the Secretary’s Motion to Amend

            Willis had less than one year of experience when he wrote Citation Number 7699497. (Tr. 45:8-11) He testified that he made a mistake when he wrote the citation because he should have written it as a 104(d) violation. Willis evaluated what he observed without fully factoring in the emergency circumstances under which miners would need to use the secondary escapeway. (Tr. 45:2-16) Under the stress and panic of an emergency, anything that could hinder a safe and effective evacuation takes on greater significance. (Tr. 32:17-33:14, 35:10-13) In retrospect, Willis feels that he should have elevated the likelihood of injury, increased the negligence assessment, alleged a Significant and Substantial (“S&S”) violation, and written the citation under section 104(d). (Tr. 31:25-32:12)

            The Citation

            Citation Number 7699497 reads as follows:

The alternate escape way coursing from the North Mains to the 7-11 escape hoist shaft is not being maintained to assure passage of anyone, including disabled persons. Between spads 16706 and 16685 there is an accumulation of water that measures 52 feet long by 20 feet wide (rib to rib) by 11 inches deep. This accumulation of water impedes travel along the alternate escape way. (Ex. S-1)

            The citation was written as a Section 104(a) (1) violation. The gravity was assessed as “unlikely.” The potential injury severity was assessed as “lost workdays or restricted duty” and affecting only one person. The operator’s negligence level was assessed as “moderate” and the proposed fine was $127.00. (Ex. S-1)

            The Standard

            30 C.F.R. § 75.380(d) (1) provides:

Each escapeway shall be maintained in a safe condition to always assure passage of anyone including disabled persons.

            Discussion and Analysis

            Motion to Amend

            The Secretary elicited testimony from Inspector Willis at the hearing that he had erred when he issued the citation as he did. Willis testified that, in hindsight, he should have issued a l04(d) citation, alleging moderate negligence, affecting ten people, resulting from an unwarrantable failure to comply, and with the S&S designation. (Tr. 30:4-17, 45:2-16, 49:7-13) Based on that testimony, the Secretary made a Motion to Amend the petition to align it with Willis’ revised assessment, pursuant to Commission Procedural Rule 2700.10 and Federal Rule of Civil Procedure 15. (Tr. 55:4-58:1) Counsel for JWR opposed the amendment. (Tr. 30:4-14, 31:14-32:15)

             The grant or denial of a motion for leave to amend is within the sound discretion of the court and will be reversed only for an abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Foman v. Davis, 371 U.S. 178, 182 (1962). Federal Rule of Civil Procedure 15(a) mandates that leave to amend “shall be freely given when justice so requires.” Wyo. Fuel Co., 15 FMSHRC 1107, 1108 (June 1993).

The court can refuse to grant leave to amend a pleading only where it will result in undue delay, [results from] bad faith or a dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [results in] undue prejudice to the opposing party by virtue of allowing the amendment, or for reasons of futility of amendment.

Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523;(8th Cir. 2000).

            The Commission has held that Federal Rule of Civil Procedure 15 is an appropriate guide for changes of pleadings. Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990). Rule 15(b) (1) deals with motions to amend raised during a trial. This rule allows–and even encourages–the court to grant a motion to amend so long as doing so facilitates a full adjudication of the merits of the case and the opposing party fails to show prejudice. Rule 15(b) (2) applies when evidence supporting a motion to amend is entered into the record either by the express or implied consent of the non-moving party.

            Rule 15(b) (1) contemplates a situation where the non-moving party is aware of the intent of the moving party to amend and has an opportunity during the hearing to convince the court not to grant the motion. Rule 15(b) (2) deals with a situation where evidence that could support an amendment of the pleadings enters the record without objection by the non-moving party either: (1) because the party becomes aware of the potential for amendment and explicitly consents that the pleadings be conformed and amended to the actual evidence and argument presented; or (2) the non-moving party does not explicitly consent to the amendment, but the evidence and argument are presented in such a way that his/her consent to the amendment can be implied.

            JWR objected to the Secretary’s evidence that she used to justify her oral Motion to Amend the Pleadings. As a result, Rule 15(b) (1) applies:

If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

Fed. R. Civ. P. 15(b) (1).

            However, Rule 15 should not be read in isolation, particularly when the issue is prejudice to the opposing party and dilatory motive. Commission Procedural Rule 53 gives the parties a mechanism to seek court approval of any amendments to their pleadings in a pre-hearing conference and/or statement. 29 C.F.R. § 2700.53. In addition, Commission Procedural Rule 10(c) obligates a party who intends to make a motion to amend its pleadings–or any other motion made in writing prior to the hearing–to make reasonable efforts to confer with the opposing party first. 29 C.F.R. § 2700.10(c). The purpose of this rule is to avoid surprise motions at trial that could unnecessarily complicate the hearing process or create the potential of prejudice against the non-moving party. These rules bring order, fairness, and efficiency to the motion process whenever a party is able to predict the need to make such a motion. Any effort by a party to avoid or subvert the obligation to confer prior to making such a motion is highly disfavored by the court.

            In this instance, the Court presumes the Secretary knew of the opportunity and obligation to disclose any need to amend her petition prior to the hearing. The Court ordered both parties to confer and submit a Joint Pre-Hearing Statement prior to the hearing. (Pre-Hr’g Order; Jt. Pre-Hr’g Stmt.) However, prior to hearing neither the Court nor JWR was apprised in writing or otherwise by the Secretary of her intent to seek amendment to the pleadings. (Tr. 56:3-5) Furthermore, it is apparent from the Secretary’s argument and Inspector Willis’ testimony that the Secretary planned in advance to present evidence at hearing to form the basis for an amendment to her pleadings. Despite the rules requiring disclosure and conference under these circumstances, the Secretary first announced her intent to seek amendment during the hearing. (Tr. 55:4-13)

            JWR’s Post-Hearing Brief raised points which, when considered in concert with both the Commission Procedural Rules and Federal Rule of Civil Procedure 15, convince the Court that JWR’s interests would be prejudiced if the Secretary were allowed to amend. Throughout the nearly two-year period between the filing of this citation and the hearing date, the Secretary allowed the original pleadings to stand. The first time the issue of possibly charging the alleged violation under section 104(d), with all its more severe implications, was revealed to JWR or the Court was during the hearing. As a result, JWR had no meaningful opportunity to prepare for the new charge and its related consequences.

            In Cumberland Coal Resources, LP, the Commission rejected a motion to amend pleadings to conform to evidence in the record when the first time the Secretary specifically referred to evidence to support her claim was during oral argument. See,Cumberland Coal Res., LP, 32 FMSHRC 442, 446-49 (May 2010) (noting that the Secretary had “ample opportunity” to reveal her plan to amend her pleadings in such a manner that would not have created prejudice to the operator). In this case, the Secretary offered up evidence for the first time at hearing to support her oral Motion to Amend the Pleadings to conform to the very evidence just introduced. Because the Secretary failed to give JWR or the Court any advance notice of her intent, the motion appears to have been part of a conscious strategy to bypass the pre-hearing rule mechanism. This strengthens JWR’s argument that it was prejudiced by not having a realistic opportunity to respond to and prepare a defense against the significantly enhanced new charges. It also unnecessarily requires the Court to enforce reasonable compliance with its rules, requirements that should have been obvious.

            The Court has considered the various factors related to this issue including: counsel’s prior intent to amend, her opportunity and obligation to avail herself of the orderly and prescribed means to amend provided in both the Federal Rules of Civil Procedure and the Commission’s Procedural Rules, the lapse of two years during which a motion to amend could have been brought, and the magnitude of the consequences to JWR arising from approval of the proposed amendment. Based on those factors, it is the Court’s conclusion that the Motion to Amend was made in bad faith, resulted from dilatory motive, and would result in undue prejudice to the operator if granted. Accordingly, the Secretary’s Motion to Amend is Denied.

            The Court could deny the Secretary’s Motion to Amend on the basis of Federal Rule of Civil Procedure 15(b) (1) and prejudice alone, however, a separate basis for denial emerges when we consider Rule 15(b) (2).  As discussed above, Rule 15(b) (2) allows a change in pleadings, even after a hearing, if the supporting facts have been tried with the express or implied consent of the parties. Fed. R. Civ. P. 15(b) (2).  The purpose of this rule is to allow the parties to conform their pleadings to the issues that were actually tried.  In keeping with this purpose, implied consent can be found where “the opposing party recognized that a new matter was at issue during the trial and that evidence was introduced to prove that [new] issue.” Cumberland, 32 FMSHRC at 447-48 (emphasis added) (citing 3 James Wm. Moore et al., Moore’s Federal Practice ¶ 15.18[1], at 15-73 (3d ed. 2002)). In determining whether there was implied consent, the Commission considers whether the trial record reflects that the opposing party understood that the moving party was litigating the unpleaded issue. See Cumberland, 32 FMSHRC at 448. However, in Cumberland the Commission also held that consent to try a new issue cannot be implied if it is based on the same evidence in the record that was relevant to an issue that was pleaded prior to the hearing. See Cumberland, 32 FMSHRC at 447-49.  In other words, in circumstances of implied consent to amend pleadings under Rule 15(b) (2), there must be evidence in the record in addition to and distinct from the evidence supporting the issues originally plead.

            As pointed out in JWR’s Post-Hearing Brief, the “new” evidence provided by Inspector Willis affected no substantive change in the facts on which the original petition was based. This was confirmed by the Secretary when she stated that her proposed amendment was not based on any new facts or evidence. (Tr. 56-58) The only deviation from the facts supporting the Secretary’s original theory of the case is Inspector Willis’ statement that he failed to evaluate the observed conditions in the light of a possible emergency situation, and as a result failed to allege the higher level of violation that the proposed amendment seeks. (Tr. 27-30) The Court agrees with JWR’s argument that such ex post facto corrections are based solely on speculation and hindsight. (JWR Br. 12) Inspector Willis’ mea culpa does not tend to make the presence of water in the secondary escapeway any more probable to cause injury to miners, nor does it add anything substantive to the facts supporting the alleged violation. As a result, there is no new or distinct evidence from which to imply consent to amend, even if one ignores JWR’s objection to Willis’ new assessment of the situation he saw in the mine.

            Accordingly, the Secretary’s Motion to Amend is denied on the basis of Rule 15(b) (1) and (b) (2) for the reasons just given.

Violation of the Standard

            The Commission held in The American Coal Company that the “applicable statute and legislative history emphasize the need for miners on a working section to exit a mine expeditiously in emergency situations.” Am. Coal Co., 29 FMSHRC 941, 952 (Dec. 2007). The Commission went further to state that “[r]eady access to escapeways for all miners is a key component of an effective evacuation of a mine.” Id. Section 75.380(d) (1) of Title 30 of the Code of Federal Regulations requires that each escapeway be maintained in a safe condition to always assure passage of anyone. The Commission has determined that the language of this section imposes on operators a duty to maintain escapeways that satisfy a general functional test of “passability.” Utah Power & Light Co., 11 FMSHRC 1926, 1930-31 (Oct. 1989). In determining whether the standard has been violated, each case must be examined on its own facts. Harlan Cumberland Coal Co., 19 FMSHRC 911, 916 (May 1997). In evaluating an escapeway violation, the Commission has held that evacuation standards are different from other mine safety standards. Cumberland Coal Res. LP, 33 FMSHRC 2357, 2367 (Oct. 2011). They are intended to apply meaningfully only when an emergency actually occurs and are violated if escape is impeded in any way. See id. Therefore, evacuation standards are evaluated under an emergency scenario. See id. at 2366.

            There is no question that the amount and extent of water described in this record would, even under the calmest and most benign of circumstances, impede, to some extent, the passability of the secondary escapeway. There is also no question that the existence of emergency conditions increases the likelihood that an obstacle, which under non-emergency circumstances might be no more than an annoyance, would become a real and dangerous impediment to free passage. In short, any condition that could degrade the passability of an escapeway in an emergency and can be mediated beforehand is a violation of the standard. This point was implicitly recognized by JWR’s witness, Hannig, when he testified that he would have pumped this area if a pump were handy. (Tr. 99:16-100:1) All other aspects and permutations of the evidence in the record are relevant to the calculus of gravity and negligence. Accordingly, the conditions described by Willis in Citation Number 7699497 violated 30 C.F.R. § 75.380(d) (1).

            Negligence

            Section 110(i) of the Mine Act requires that in assessing penalties the Commission must consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each mandatory standard thus carries with it an accompanying duty of care to avoid violations of the standard. An operator’s failure to meet the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.

            Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required . . . to take steps necessary to correct or prevent hazardous conditions or practices.” Id. The water accumulation impeded free passability in the secondary escapeway and was thus a hazard that JWR had an obligation to correct or prevent.

            When determining the degree of negligence, “MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Reckless disregard may be found when “[t]he operator displayed conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d) tbl.X. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. A finding of no negligence is appropriate when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.

            This citation alleges moderate negligence. According to the guidance in Section 110(i), “low” or “moderate” negligence may be found when an operator knew or should have reason to know about a violative condition. Id. The evidence on this point is quite limited. The secondary escapeway had been examined on October 22nd, four days before the citation was issued. (Tr. 51:7-22, 72:8-20) JWR’s examiner did not make any notation about water or any other potential hazard in the record for the examination on October 22^nd. (Tr. 72:11-13) And Inspector Willis found that examination to be compliant. (Tr. 72:8-20) Inspector Willis guessed that the water had been as he found it for three days, and testified that “the water could have been there at the time [of the examination] but possibly not at [the] depth [Inspector Willis observed].” (Tr. 52:7-25, 72:8-10; Sec’y Ex. 1) But given the lack of any hazard notation from the October 22 examination, it is equally logical, if not more so, to infer that the accumulation was not present in any form at the time of the examination and gradually developed over the next three days. Willis even admitted in his inspection notes (Sec’y Ex. 1) that he could not prove that JWR’s management should have known about the cited accumulation. Furthermore, Willis himself treated the possibility of non-discovery as evidence of mitigation which affected his assessment of negligence at the “moderate” level. (Tr. 51:7-53:4) JWR did what was required of it in examining its secondary escapeway on a weekly basis. There is nothing to support a finding that JWR failed to exercise reasonable diligence in conducting its weekly examination. In sum, the evidence does not support Willis’ “moderate” negligence assessment. In keeping with Section 110(i), the Court’s finding is “no negligence.”

                        Gravity (“Seriousness”)

            The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is viewed in terms of the potential or actual seriousness of the violation. See Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983) aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The gravity analysis focuses on factors such as the likelihood of an injury, the severity of an injury, and the number of miners potentially injured. Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator’s conduct with respect to that standard, in the context of the Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be made assuming continued normal mining operations without abatement of the violation. See Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). 

            Contrary to the argument in JWR’s Post-Hearing Brief, the water accumulation in the secondary escapeway is a citable hazard under 30 C.F.R. § 75.380(d) (1). The court is persuaded by the Inspector’s rationale that in an emergency situation–regardless of whether JWR’s management knew of it–the water accumulation would pose a real impediment to escape. Willis considered many factors in assessing the gravity alleged in the citation: the extent of the water accumulation; the condition of the floor; the clearness of the water; the dimensions of the escapeway; the gassy condition of the mine; and the existence and condition of the life line. Although he paid greater attention to the complications an emergency situation would bring in the context of his attempt to ramp the violation up to a higher level , he did have in mind that this hazard existed in an emergency escapeway when he made his original assessment. No other evidence was allowed into the record that bears on the issue of gravity as viewed by Willis at the time of the citation. He was aware that in the event of an emergency scenario with thick smoke or airborne dust, the air would be going out of the mine through the escapeway and would probably be smoky or dusty with poor visibility. (Tr. 27:22-29:5, 32:17-33:7) This mine was known to Willis to be “gassy” and has been elevated to spot checks for methane, thus increasing the likelihood of an explosion or fire. (Tr. 42:14-25; Ex. S-7 No. 9) Willis was aware that there would be a sense of urgency, if not panic, that could increase the likelihood that a condition deemed unremarkable under calmer circumstances would take on more dire dimensions in an emergency scenario. (Tr. 35:10-13) Willis duly considered that any normally-avoidable impediment could significantly impede evacuation in an emergency. From Willis’ experience with mock mine emergency training, he was aware that the potential hazard was compounded by the real possibility that a stretcher evacuation might be necessary. (Tr. 33:8-14) In light of all this, Willis determined that the water accumulation could reasonably cause slip and trip injuries such as strains, sprains, and pulled muscles. (Tr. 46:21-25)

            The citation categorizes the gravity of an event arising from this violation as potentially causing lost workdays or restricted duty for a single miner, but that such an event would be unlikely to occur. (Ex. S-1) The evidence discussed above supports that assessment, and JWR did not argue against it, other than to claim that there should have been no citation written at all. It is of some note that Willis did not treat the violation as significant enough to require evacuation of the mine or rerouting of the escapeway. (Tr. 74:8-75:2) Instead, he abated the citation when JWR pumped the water out. (Tr. 72:21-73:4) Willis’ supervisor reviewed Willis’ citation and notes and allowed them to stand without alteration. (Tr. 60:14-21) The Court sees no reason to view Inspector Willis’ initial gravity assessment in any light different that he did at the time he wrote the citation. Accordingly, the violation’s gravity assessment is sustained.

            Penalty

The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the Act]. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). When an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the Commission and its Administrative Law Judges consider the six statutory penalty criteria:

            [1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

                        The allegations in the Secretary’s petition regarding those six penalty factors were not factually contested by JWR at the hearing. (Ex. S-5) The Court accepts the Secretary’s allegations regarding the operator’s size and recognizes the stipulation that the violation was abated in good faith. The Court has considered the history of past violations at this mine as summarized in Exhibit S-5, including the citation for the standard discussed above. After considering all of the penalty criteria, I assess a penalty of $100.00.

Order

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a total penalty of $100.00. JWR is hereby ORDERED to pay the Secretary of Labor the sum of $100.00 within 30 days of the date of this decision.

/s/ L. Zane Gill

L. Zane Gill

Administrative Law Judge

Distribution: (Certificate Return Receipt)

Sophia E. Haynes, Esq., United States Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW, Suite 7T10, Atlanta, Georgia 30303

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

Guy W. Hensley, Walter Energy, Inc., 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244