FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 25, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

            These contest cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). In these proceedings, Administrative Law Judge L. Zane Gill vacated a citation issued to Clintwood Elkhorn Mining Company (“Clintwood”) by the Department of Labor, Mine Safety and Health Administration (“MSHA”) for an alleged failure to maintain control of a haul truck as required by the mandatory safety standard in 30 C.F.R. § 77.1607(b). 32 FMSHRC 1880, 1896 (Dec. 2010) (ALJ). The Secretary filed a petition for discretionary review (“PDR”), which was granted by the Commission.

            For the reasons that follow, we reverse the judge’s decision and remand the case.

I.

Factual and Procedural Background

            Clintwood operates a coal preparation plant in Pike County, Kentucky. 32 FMSHRC at 1882. A steeply graded haul road runs from the plant to a nearby deep coal mine. Id. at 1882-83; Gov. Ex. 1. Clintwood contracted with Hubble Mining Co. (“Hubble”) to operate this mine. Tr. 38. Hubble contracted with Tattoo Trucking to haul the coal mined from this property to the plant. 32 FMSHRC at 1884; Tr. 38-39. 

            During the morning of October 6, 2010, Shane Bishop, an employee of Tattoo Trucking, was hauling coal from the mine down to Clintwood’s plant in a 20-ton Mack 800 haul truck. 32 FMSHRC at 1882-84; Tr. 121-22. On his ninth trip to the plant, Bishop encountered mine equipment occupying the road. 32 FMSHRC at 1883; Gov. Ex. 7. He applied the brakes and waited for the equipment to clear. 32 FMSHRC at 1883. Bishop then continued on his way. Id. at 1884. While descending the hill, he once again attempted to apply the brakes. Id. This time the brakes failed. Id. Without the brakes, the truck continued to accelerate for about 100 to 150 feet before crashing through a berm and utility pole at the base of the hill. Id. The truck rolled over onto its passenger side, where it came to a stop with its front axle suspended over the 30-foot dropoff to the plant’s dump area. Id.; Tr. 32.

            Bishop suffered only an abrasion and some bruising, despite not wearing his seatbelt. 32 FMSHRC at 1884; Tr. 190-94. He was taken to a hospital emergency room, examined by a doctor, and released without treatment. 32 FMSHRC at 1884.

            Homer Sullivan, the superintendent at Clintwood, notified the local MSHA office of the incident. Id. at 1885. Sullivan spoke with Inspector James Holbrook, who immediately issued Order No. 8247761 pursuant to section 103(j) of the Act, 30 U.S.C. § 813(j). Id.; Gov. Ex. 1. Holbrook then traveled to the plant and modified the order to reflect MSHA’s authority pursuant to section 103(k) of the Act. 32 FMSHRC at 1885. The order required Clintwood to obtain the Secretary’s approval prior to restoring operations on the haul road. Gov. Ex. 1. Clintwood was, however, permitted to continue dumping activities at the plant. Id.

            On October 8, 2010, Keith McCoy, Clintwood’s safety manager, submitted an action plan to MSHA and sought approval to resume traffic on the haul road. Gov. Ex. 13. Clintwood proposed that it would provide gravel to maintain existing truck “run-a-way ramps,” implement a no-shift policy, and limit the amount of coal hauled on the road to the amount permitted under Kentucky state law. Id.

            Inspector Holbrook and Inspector Robert Bellamy did not find Clintwood’s action plan to be sufficient to terminate the section 103(k) order. Tr. 52-53, 165. The inspectors believed that Bishop’s haul truck had been loaded beyond its weight capacity, and that this alleged overloading contributed to the driver’s loss of control. Tr. 63-64, 167, 170. As a result, MSHA requested that the operator develop a plan to provide the haul trucks’ gross vehicle weight rating (“GVWR”) on the weigh tickets or to otherwise make the information available. 32 FMSHRC at 1886; Tr. 140.

             On October 13, 2010, Clintwood submitted a second action plan stating that it would provide additional gravel for the contractors to use to maintain the “run-a-way ramps” on the haul road. Gov. Ex. 14. Clintwood did not include in the revised action plan a method to disclose the GVWR of the haul trucks which dumped at the plant. 32 FMSHRC at 1886; Gov. Ex. 14.

            On October 14, as a result of the findings of MSHA’s investigation, Inspector Bellamy issued Citation No. 6660595 pursuant to section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1).

32 FMSHRC at 1886; Tr. 150. The citation alleged that the driver of the haul truck had failed to maintain control of the vehicle in violation of 30 C.F.R. § 77.1607(b), which provides that “[m]obile equipment operators shall have full control of the equipment while it is in motion.” Gov. Ex. 12. The citation also alleged that the violation was significant and substantial and the result of the operator’s unwarrantable failure to comply with the mandatory safety standard. Id.

            On October 15, Inspector Holbrook observed trucks that he considered to be overloaded continuing to dump at the plant. Gov. Ex. 8; Tr. 41. He issued Order No. 8247767 pursuant to section 104(b) of the Act, 30 U.S.C. § 814(b), thereby halting all coal haulage to the plant. Gov. Ex. 8. On the same day, Holbrook also issued Citation No. 8247768 pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), following Clintwood’s failure to comply with MSHA’s document request for truck weigh tickets. Gov. Ex. 9. 

            Clintwood requested an expedited hearing pursuant to Commission Procedural Rule 52, 29 C.F.R. § 2700.52. 32 FMSHRC at 1880. The hearing was held on October 19, 2010. Id. At the conclusion of the Secretary’s direct case, Clintwood moved to vacate the citations and orders. Id. at 1881.

            The judge granted the operator’s motion and vacated the two citations and the two orders. Id. at 1881, 1890-92. He vacated the citation that is at issue on review (Citation No. 6660595) for two independent reasons. Id. at 1890. The judge concluded that the Secretary had exceeded her authority by issuing the citation during an accident investigation for a violation that no longer existed. Id. Furthermore, he concluded that the Secretary had failed to prove that the haul truck at issue was overloaded. Id.

II.

Disposition

            The Secretary asserts that the judge erred in declining to accept her interpretation of section 104(d)(1) of the Act as authorizing her to cite an operator for conditions that have since expired. Also, she alleges that the judge further erred in interpreting section 77.1607(b) to require the Secretary to prove that the truck at issue was overloaded.

            Clintwood argues that the judge’s decision to vacate the citation should be affirmed because the citation was issued in an arbitrary and capricious manner in that it was entirely predicated upon the unproven allegation that the haul truck at issue was overloaded. The Secretary responds that a failure to establish that the truck was overloaded is not sufficient grounds to vacate the citation.  

                        A.        The Secretary’s authority pursuant to section 104(d)(1) of the Act

            Section 104(d)(1) of the Mine Act provides that “[i]f, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that . . . such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator . . . .” 30 U.S.C. § 814(d)(1) (emphasis added).

            The judge concluded that “by using the term ‘inspection’ alone, Congress reserved and confined [section 104(d)(1)] to current existing violations . . . Congress did not intend this authority to be used as a post hoc sanction for violations no longer extant or previously abated  . . . .” 32 FMSHRC at 1889 (citing Nacco Mining Co., 9 FMSHRC 1541, 1565 (Sept. 1987) (Chairman Ford, dissenting)). The judge further opined that the Secretary’s authority pursuant to

section 104(d)(1) is reserved for existing violations which require “prophylactic mine closure.” 32 FMSHRC at 1889-90.

             Contrary to the judge’s analysis, it is well established that the Secretary has the authority to issue a citation pursuant to section 104(d) for both “existing and expired conditions and circumstances.” Nacco Mining, 9 FMSHRC at 1548; see also Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 59 (D.C. Cir. 1988); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243 (Aug. 1992). The judge’s analysis was flawed, as he relied on a dissenting opinion in Nacco Mining which lacks any precedential value.

            In Nacco Mining, the Commission considered whether the term “inspection” in section 104(d)(1) of the Mine Act limits the Secretary’s authority to issue citations pursuant to that section to presently existing circumstances observed by an inspector. 9 FMSHRC at 1542-43. The Commission concluded that neither common usage of the term “inspection,” the Act’s purposes, nor its legislative history supports such a restrictive interpretation. Id. at 1547-50. Furthermore, the Commission noted that

detection of a violation after it has ceased to exist is not uncommon. Many violations by their very nature cannot be, or are unlikely to be, observed or detected until after they occur. For example, the failure to perform a required pre-shift examination, 30 C.F.R.

§ 75.303, is usually detected after the shift has commenced, and most health violations are determined after the fact of violation through the analysis of samples and other data. See, e.g., 30 C.F.R.

§ 70.100.

Id. at 1547. Accordingly, the Commission concluded that “a section 104(d) sanction may be based upon a prior violation.” Id. at 1550.

            In Emerald Mines Corp., 9 FMSHRC 1590 (Sept. 1987) (issued simultaneously with Nacco Mining), the Commission reaffirmed Nacco Mining in both its holding and its rationale. The operator appealed this case to the D.C. Circuit. On review, the court affirmed the Commission, holding that the Secretary may issue citations pursuant to section 104(d)(1) for violations that had been previously abated. Emerald Mines, 863 F.2d at 59. The D.C. Circuit stated that “[t]he gravity of the mine operator’s conduct does not turn on whether the operator was caught in or after the act.” Id.

            Accordingly, we conclude that in the present proceedings the judge erred in concluding that the Secretary did not have the authority to issue a citation pursuant to section 104(d)(1) for a violation that no longer existed.

                        B.        The alleged overloading of the haul truck 

            The judge also vacated the citation for a second, independent reason: he believed that the citation was “predicated on the unproved allegation that overloading existed.” 32 FMSHRC at 1890 (Citation No. 6660595 states, in part, that “the contract driver of a loaded coal haulage truck failed to maintain control of the truck . . . . Overloading of the truck contributed to the driver losing control.” Gov. Ex. 12). The judge concluded that the citation must be vacated because the Secretary failed to prove that the truck at issue was overloaded. Id. at 1888-90.

            We conclude that the judge erred in his interpretation of 30 C.F.R. § 77.1607(b). In order to establish a violation of section 77.1607(b), the Secretary must only demonstrate, by a preponderance of the evidence, that the operator failed to maintain full control of a piece of equipment while it was in motion. Nothing in the language of the standard requires the Secretary to prove a causal or contributing factor for the loss of control, as suggested by the judge. Id. at 1888.

            It is undisputed that Bishop was unable to stop his truck as it rolled down the haul road, crashed through a berm, knocked over a pole, and flipped onto its passenger side. Id. at 1884. The judge concluded that “[i]t is obvious that the driver here lost control of his truck. . . . Mine operators are strictly liable for violations such as this.” Id. at 1882 n.2. This is where the analysis should have ended.

            We conclude that the judge made a finding that is both necessary and sufficient to affirm the citation: the driver lost control of his truck. Thus, it is clear that Clintwood violated the mandatory safety standard in section 77.1607(b). See Ames Construction, Inc., 33 FMSHRC 1607, 1611 (Jul. 2011), affirmed, 676 F.3d 1109 (D.C. Cir. 2012) (the Mine Act imposes strict liability for violations which occur at a mine without regard to the operator’s fault) (citations omitted).

III.

Conclusion

            In summary, we conclude that the Secretary acted within her authority in issuing the citation pursuant to section 104(d)(1). We also conclude that Clintwood violated the mandatory safety standard in 30 C.F.R. § 77.1607(b).

            Accordingly, the decision of the judge is reversed. Citation No. 6660595 is remanded to the judge so that he may consider whether the Secretary established that the violation was significant and substantial, and whether it was the result of an unwarrantable failure to comply by the operator. Additionally, the judge is to assess an appropriate penalty.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

Marco M. Rajkovich, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge L. Zane Gill

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004