<DOC>
[DOCID: f:yk200046o1.wais]
METRO RECYCLING AND CRUSHING, INC.
November 14, 2000
YORK 2000-46-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
November 14, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 2000-46-M
Petitioner : A. C. No. 30-03197-05505
v. :
: Phillipsport Pit
METRO RECYCLING AND CRUSHING, :
INC., :
Respondent :
ORDER GRANTING MOTION TO AMEND PLEADINGS
This case is before me on a Petition for Assessment of Civil
Penalty pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(d). It concerns one citation
and two orders arising out of a fatal mine accident. The
Secretary has moved to amend Citation No. 7716911 to allege
alternative sections of the regulations. The Respondent opposes
the motion. For the reasons set forth below, the motion is
granted.
Citation No. 7716911 charges a violation of section 56.14202
of the regulations, 30 C.F.R. � 56.14202, because:
A fatal mine accident occurred at this
operation on March 18, 1999, when the plant
superintendent was caught in an unguarded
return roller on the discharge conveyor from
the portable screening plant. He was
cleaning the roller while the conveyor was
running. Cleaning the roller while the belt
was running exhibited a serious lack of
reasonable care constituting more than
ordinary negligence and is an unwarrantable
failure to comply with a mandatory safety
standard.
Section 56.14202 requires that: "Pulleys of conveyors shall not
be cleaned manually while the conveyor is in motion."
Stating that there "may be some legal and factual
controversy" concerning the definition of "pulley" in section
56.14202, the Secretary proposes to amend the citation to allege
that the conduct violates section 56.14202 or section 56.14105,
30 C.F.R. � 56.14105. Section 56.14105 provides, in pertinent
part, that: "Repairs or maintenance of machinery or equipment
shall be performed only after the power is off, and the machinery
or equipment blocked against hazardous motion."
The company argues that allowing the Secretary to plead in
the alternative would violate the provisions of section 104(a) of
the Act, 30 U.S.C. � 814(a), and would be unfair and prejudicial.
Neither of these arguments is persuasive.
Section 104(a) provides, in pertinent part, that: "Each
citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference
to the provision of the Act, standard, rule, regulation, or order
alleged to have been violated." The Respondent asserts that this
requires that the Secretary identify the standard alleged to have
been violated with particularity. However, what has to be
described with particularity is the nature of the violation, not
the standard. Under the proposed amendment, the description of
the violation would remain unchanged. Furthermore, even if the
standard violated has to be described with particularity, the
proposed amendment accomplishes that purpose by referring to the
two standards alleged to have been violated.[1]
Although there is no provision for amending citations in the
Commission's Rules, the Commission has held that the modification
of a citation or order is analogous to an amendment of pleadings
under Fed. R. Civ. P. 15(a).[2] Wyoming Fuel Co., 14 FMSHRC
1282, 1289 (August 1992); Cyprus Empire Corp., 12 FMSHRC 911, 916
(May 1990). The Commission has further noted that:
In Federal civil proceedings, leave for
amendment "shall be freely given when justice
so requires." Fed. R. Civ. P. 15(a). The
weight of authority under Rule 15(a) is that
amendments are to be liberally granted unless
the moving party has been guilty of bad
faith, has acted for the purpose of delay, or
where the trial of the issue will be unduly
delayed. See 3 J. Moore, R. Freer, Moore's
Federal Practice, Par. 15.08[2], 15-47 to 15-
49 (2d ed. 1991) . . . . And, as explained
in Cyprus Empire, legally recognizable
prejudice to the operator would bar otherwise
permissible modification.
Wyoming Fuel, 14 FMSHRC at 1290.
In this case, there is no evidence that the Secretary is
acting in bad faith or is seeking amendment for the purpose of
delay. Nor does it appear, and indeed there is no argument, that
the trial will be unduly delayed. It is scheduled to begin on
December 19, 2000, and there does not appear to be any reason why
it will not begin on that date. The Respondent, however, argues
that it will be prejudiced by the modification because its
ability to defend itself by demonstrating that no violation of
section 56.14202 occurred will be nullified.
In the first place, the fact that it may have a defense to a
violation of section 56.14202, but, perhaps, not to a violation
of section 56.14105, does not demonstrate that the company will
be prejudiced by allowing the amendment. As the Commission has
long recognized: "The 1977 Mine Act imposes a duty upon
operators to comply with all mandatory safety and health
standards. It does not permit an operator to shield itself from
liability for a violation of a mandatory standard simply because
the operator violated a different, but related, mandatory
standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January
1981). Secondly, the prejudice that would warrant denial of the
modification of the citation is prejudice resulting from delay,
or if the amendment involves a new theory of violation or
requires additional discovery. See generally 3 James W. Moore et
al., Moore's Federal Practice, � 15.15[2], (3d ed.1997).
In this case, there is no indication or allegation that any
of this type of prejudice would occur. As noted above, there
should be no delay. Nor does the amendment involve a new theory
of violation. The factual allegations remain the same. Whether
a violation of section 56.14202 or of section 56.14105, the
matter will be decided on the language, "[h]e was cleaning the
roller while the conveyor was running." In this regard, section
56.14202 is essentially an included offense in section 56.14105.
For this reason, no extensive, additional discovery should be
required. Thus, the Respondent has not demonstrated that it will
be prejudiced by the modification.
In addition, it is clear that the Secretary could have moved
to amend the citation to allege a violation of 56.14105 instead
of section 56.14202 and, as discussed above, the company would
have no apparent valid objection to such an amendment.
Furthermore, if the Government proceeded to trial on the citation
as alleged, it would appear that Fed. R. Civ. P. 15(b) would
permit it to move to amend the citation to conform to the
evidence adduced at the trial.[3] Faith Coal Co., 19 FMSHRC
1357, 1362 (August 1997).
Finally, Fed. R. Civ. P. 8(e)(2) specifically provides that:
"A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or
defense or in separate counts or defenses." Since the Federal
Rules affirmatively permit alternative pleadings, the Secretary
has a good reason for pleading in the alternative and the
Respondent has not presented any valid reason why the
modification should not be permitted, it is clear that the
citation may be amended as requested.
Accordingly, the Secretary's Motion to Amend Pleadings is
GRANTED and it is ORDERED that Citation No. 7716911 is MODIFIED
to allege that the operator violated either section 56.14202 or
section 56.14105 of the regulations.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-6213
**FOOTNOTES**
[1]: On the other hand, this provision of the Act would
prohibit what the operator claims is the logical result of
permitting the Secretary to plead alternatively, that the
Secretary "could just allege a violation of 30 C.F.R.," because
then there would be no reference to the standard alleged to have
been violated.
[2]: The Commission's Procedural Rules provide that on
questions of procedure not regulated by the Act, the Commission's
Rules, or the Administrative Procedure Act, 5 U.S.C. � 551 et
seq., the Commission and its Judges shall be guided by the
Federal Rules of Civil Procedure, "so far as practicable." 29
C.F.R. � 2700.1(b)
[3]: Fed. R. Civ. P. 15(b) provides that:
When issues not raised by the pleadings
are tried by express or implied consent of
the parties, they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform
to the evidence and to raise these issues may
be made upon motion of any party at any time,
even after judgment; but failure so to amend
does not affect the result of the trial of
these issues. If evidence is objected to at
the trial on the ground that is not within
the issues made by the pleadings, the court
may allow the pleading to be amended and
shall do so freely when the presentation of
the merits of the action will be subserved
thereby and the objecting party fails to
satisfy the court that the admission of such
evidence would prejudice the party in
maintaining the party's action or defense
upon the merits. The court may grant a
continuance to enable the objecting party to
meet such evidence.
Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, E-375, John F. Kennedy Federal Building,
Boston, MA 02203
Thomas C. Means, Esq., Crowell & Moring, LLP, 1101 Pennsyl-
vania Avenue, N.W., Washington, D.C. 20004
/nt