FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

October 18, 2011

ORDER DENYING MOTION TO AMEND PETITION FOR

ASSESSMENT OF CIVIL PENALTY

            This case is before me on a Petition of the Secretary of Labor for Assessment of Civil Penalty (“Petition”) issued against Consolidation Coal Company (“Consol”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“the Act”). The Secretary proposed assessing penalties against Consol totaling $199,300 for five alleged violations of mandatory safety standards at Consol’s Buchanan #1 coal mine (“Buck 1”). Consol challenged both the occurrence of the violations and the severity of the assessed penalties.

            A formal hearing was held in Jonesborough, Tennessee on July 12 and 13, 2011. At the hearing, the parties were given until September 13, 2011 to file their post-hearing briefs. Subsequently, the briefing deadline was extended 30 days. Late in the afternoon of October 3, the Secretary’s Motion to Amend Petition for Assessment of Penalty (“Secretary’s motion” or “motion to amend”) and accompanying memorandum of law was faxed to this office. In a conference call held on October 4, Respondent stated that it opposed the Secretary’s motion, and was given until October 7 to file a response. That response was timely filed. Having considered the parties’ positions, the Secretary’s motion is denied.

            First, by way of clarification, although the Secretary entitled her motion Secretary’s Motion to Amend Petition for Assessment of Penalty, the Secretary is not seeking to modify that document. Rather, she is seeking to amend Order No. 8157102, one of five orders and citations on which the Petition is based. The standard listed as violated in Order No. 8157102 is 30 C.F.R. §75.1103-3. The Secretary seeks to change that to §75.1100-1(a).

Order No. 8157102 alleges that Respondent, in the course of repairing a water line which supplied water to be used to fight fires on the beltline, shut off the water while the beltline was running. The order further alleges that defective belt rollers created a potential fire hazard, and there was no fire protection for the affected belts. The order concludes that “[t]his violation is an unwarrantable failure to comply with a mandatory standard.” The standard cited was §75-1103-3. Thus the alleged violation contains several elements: the lack of operational waterlines; lack of any other effective fire protection; and the fire hazard posed by stuck belt rollers.

            Section 75.1103-3 states:

Automatic fire sensor and warning device systems installed in belt haulageways of underground coal mines shall be assembled from components which meet the minimum requirements set forth in §§75-1103-4 through 75-1103-7 . . . .

This regulation is clearly inapplicable to the facts surrounding the alleged violation. Apparently, this incorrect citation had not been noticed by the Secretary prior to the hearing, since no amendment to Order 8157102 was sought at that time. But this error clearly was brought to the Secretary’s attention at the hearing, when the mine inspector was being cross-examined by Respondent’s counsel specifically regarding §75.1103-3. See July 12, 2011 transcript at 154-55. Yet the Secretary did not move to amend the Petition to allege a violation of a different standard at that time, waiting until just before the parties’ briefs had to be filed. Further, as Respondent points out, the Secretary offers no explanation for filing the motion to amend almost three months after the hearing and days before the briefs were due to be filed.

            Accepting for purposes of argument that the case law cited by the Secretary would permit me to grant the motion to amend, I find that, under the circumstances above, it would be inequitable to do so. Filing the motion to amend at so late a date, months after the inspector’s error of citing an inapplicable standard in the order must have become known to the Secretary, and without explanation for the unwarranted delay, should not be sanctioned. Further, Respondent contends that amending the order at this time would be prejudicial because it was denied the opportunity to cross-examine the mine inspector regarding the specific standard the Secretary now alleges was violated. Since Respondent’s counsel effectively cross-examined the mine inspector regarding the alleged violation of §75.1103-3, this contention is credible. Accordingly, I find that the Respondent would be prejudiced if the untimely motion to amend the order is granted, and therefore it must be denied.

            As an additional point, permitting the Secretary to amend the order to reference §75.1101-1(a) rather than §75.1103-3 would not aid the Secretary’s case, and would be a waste of both Respondent’s and the Court’s time, for §75-1101-1(a) also is inapplicable to the facts of this case. 

            Section 75.1100, essentially the preamble to 30 C.F.R. Part 75, Subpart L – Fire Protection, states that “[e]ach coal mine shall be provided with suitable firefighting equipment adapted for the size and conditions of the mine. The Secretary shall establish minimum requirements of the type, quality, and quantity of such equipment.” Section 75.1101-1(a), titled “Type and quality of firefighting equipment”, sets a standard for the size and capacity of water lines being placed in a mine. It states that “[w]aterlines shall be capable of delivering 50 gallons of water a minute at a nozzle pressure of 50 pounds per square inch.” It does not deal with the actual operation of that equipment; and whether the waterline is capable of delivering 50 gallons of water a minute at a nozzle pressure of 50 pounds per square inch was never at issue. In addition, whether Respondent committed a violation of a safety standard simply because a waterline was not operational was not an issue which was tried at the hearing. The violation was always indicated to be the combination of an inoperable water line, the absence of other effective firefighting equipment and the hazardous condition of the beltline. See, e.g., GX 3. In any event, although there might be a section of the regulations that would make the operation of a beltline with an inoperable waterline, by itself, a violation of the Act, neither §75.1103-3 nor §75.1101-1(a) is it. Accordingly, amending Order 8157102 to allege a violation of §75-1101-1(a) rather than §75-1103-3 would serve no purpose, and would result in unnecessary delay.

            Therefore, not only would it be improper to permit the Secretary to amend the order because it was filed too late without explanation and would be prejudicial to Respondent, the amendment the Secretary seeks to make must be rejected because it concerns an issue which was not tried and in any event is not relevant to the facts of the case.

            In conclusion, IT IS ORDERED that the Secretary’s Motion to Amend the Petition for Assessment of Penalty is denied. The parties are FURTHER ORDERED to file their briefs not later than October 28^th.

                                                                        /s/ Jeffrey Tureck

                                                                        Jeffrey Tureck

                                                                        Administrative Law Judge

Distribution:

Angela Gregory, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7^th Avenue North, Nashville, TN 37218

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 North eagle Creek drive, Suite 310, Lexington, KY 40509.