**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

Office of Administrative Law Judges

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

Washington, D.C. 20004

 

 

|                                                                      |                                |
|---------------------------------------------------------------------------|-------------------------------------|
| SECRETARY OF LABOR,                                                       | :     CIVIL PENALTY PROCEEDING      |
| MINE SAFETY AND HEALTH                                                    | :                                   |
| ADMINISTRATION (MSHA),                                                    | :     Docket No. WEVA 2023-0035     |
| Petitioner,                                                               | :     A.C. No. 46-09569-564845      |
|                                                                      | :                                   |
| v.                                                                        | :                                   |
|                                                                      | :                                   |
| CONSOL MINING COMPANY, LLC,

                 Respondent.                 | :     Mine: Itmann No. 5

:         |
|                                                                      |                                |

** **

**ORDER GRANTING THESECRETARY OF LABOR’S**

**MOTION TO AMENDPETITION**

 

This case is before me upon thefiling of the Secretary of Labor’s Petition for the Assessment of Civil Penaltyunder section 105 of the Federal Mine Safety and Health Act of 1977 (“MineAct”), 30 U.S.C. § 815. On March 15, 2023, the parties notified my LawClerk that they settled all but one citation in this docket, leaving onlyCitation No. 9568130 at issue. 

 

On March 30, 2023, the Secretary ofLabor (“Secretary”) filed a Motion to Amend Petition. In the motion, theSecretary requests that I grant her request to modify the negligence for Citation No. 9568130. (Mot. at 1.) The citation’snegligence was originally designated as “moderate,” and the proposed penaltyassessment is $2,194.00. In Citation No. 9568130, Inspector Nicholas Christianwrote the following verbatim— 

 

The roof and ribs where miners arerequired to work and travel are not being maintained on the A-Mains section. Whenobserved multiple ribs were found to be broken loose from the mine roof andalong both sides. These were found at the following locations:

1) #5 Entry 2 Crosscuts inby Feeder,measured 60” long x 8” wide and 12” thick

2) #4 Entry 2 Crosscuts inby Feeder,measured 60” long x 30” wide and 18” thick

3) #5 Entry 2 Crosscuts inby Feeder,measured 24’ long x 18” wide and 24” thick

4) #4 Entry Feeder Line, measured 8’long x 29” wide and 14” thick

 

All of these ribs were in areas whereminers are required to work and travel throughout their work shift, thereforeexposing them to hazards related to falling rock and materials. 

 

Standard 75.202(a) was cited 7 timesin two years at mine 4609569 (7 to the operator, 0 to a contractor).

 

(Mot. at 1–2.)

 

            On April 7, 2023, Respondent filed a Responseopposing the Secretary’s Motion to Amend Petition. 

 

**I.  PARTIES’ARGUMENTS**

 

In the motion, the Secretary seeksto modify the negligence finding from “moderate” to “high.” (Mot. at 2.) Insupport, the Secretary points to the citation which alleges “obvious andextensive cracked and broken ribs in four areas where miners frequently traveland work.” (Mot. at 2.) The Secretary also notes that CONSOL has been citedseven times in the previous two years under this same standard, including fourcitations in the month prior to the issuance of the current citation, whichshould have put “the operator on heightened notice to be aware of and correcthazardous rib conditions.” (Mot. at 2.) The Secretary asserts that she “doesnot seek in this motion a determination of an appropriate penalty amount.” (Mot.at 3–4.) Rather, via the motion, the Secretary seeks to give CONSOL adequatenotice of the Secretary’s intent to seek a higher civil penalty than initiallyproposed, so CONSOL will have the “full opportunity to develop its case andprepare for hearing.” (*Id.*) 

 

CONSOL opposes the Secretary’smotion. (Mot. at 4; Resp. at 1.) CONSOL counters that Inspector Christian, whoissued the citation in this case, also issued three of the recent citationsrelied upon by the Secretary, and thus, CONSOL asserts, Inspector Christian wasaware of the previous citations when he originally determined the level of negligence.(Resp. at 2–3.) CONSOL notes that counsel for the Secretary has not yetanswered written discovery nor taken depositions, and thus CONSOL believes theSecretary is filing this motion without all necessary information. (Resp. at2.) CONSOL argues, “it would be unnecessary, inappropriate, and premature tooverrule the negligence designation of the Inspector at this early state.” *Id.*Further, CONSOL states that no evidence suggests the Secretary interviewed theInspector or that the Inspector altered his opinion as to the level ofnegligence he originally designated. (Resp. at 3.) CONSOL posits that, becausethe court analyzes negligence *de novo* after hearing the evidence and maymodify the Secretary’s citation, the Secretary’s motion is “unnecessary.” *Id.*

 

Lastly, CONSOL argues that theSecretary’s proposed amendment “prejudicesthe Respondent, since it represents a willingnesson the part of the Secretary tooverrule its Inspector, early in the process, without completingwritten discovery, depositions orconsidering the mitigating factors to be identified by the Respondent.” (Resp.at 4.) CONSOL attaches the Secretary’s Interrogatories and Requests forProduction of Documents and First Request for Admissions to Respondent to its response.(Resp. at 6–10.)CONSOLhypothesizes that the Secretary’s motion is “merelybeing utilized to exert inappropriate pressure on Respondent for exercisingrights of discovery and a hearing.” (Resp. at 4.) 

 

**II.  PRINCIPLES OFLAW AND ANALYSIS**

 

TheCommission has no specific rule regarding the amendment of pleadings, yet CommissionProcedural Rule 1(b) states “[o]n any procedural question not regulated bythe Act, these Procedural Rules, or the Administrative Procedure Act . . . theCommission and its judges shall be guided so far as practicable by the FederalRules of Civil Procedure.” 29 C.F.R § 2700.1(b). Federal Rule of Civil Procedure 15(a)(2) states that after more than 21 days after filing initialpleadings, a party may amend its pleading “only with the opposing party’s writtenconsent, or the court’s leave,” but that “[t]he court should freely giveleave when justice so requires.” Fed. R. Civ. P.15(a)(2).

 

TheSupreme Court has interpreted Rule 15 liberally to allow amendments topleadings unless one of the following factors is present that justifies denial—(a)undue delay; (b) bad faith by movant; (c) repeated failure to curedeficiencies by previous amendments; (d) undueprejudice to the opposing party; or (e) futility of amendment. *Foman v. Davis*, 371 U.S. 178, 182 (1962).The Commission takes a similar view when it comesto amending petitions, especially when the amendment does not prejudice the non-movingparty in preparing its defenses. *See Cyprus Empire Corp.*, 12 FMSHRC911, 914–16 (May 1990) (finding noabuse of discretion by ALJ who permitted Secretary’s prehearing amendment tothe citation where the non-moving party was not prejudiced by the amendment); *seealso Wyo. Fuel Co.**,* 14FMSHRC 1282, 1290 (Aug. 1992) (“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”);*CDKContracting Co.**,* 23FMSHRC 783, 784 (July 2001) (ALJ) (“Itis well settled that administrative pleadings are liberally construed andeasily amended, as long as adequate notice is provided and there is noprejudice to the opposing party” in granting Secretary’s motion to amend toallege violations of two alternative safety standards).

 

First, in applying the SupremeCourt’s test for Rule 15(a), I note that the Secretary’s amendment causes noundue delay, because no hearing date had yet been set at the time the motionwas filed and discovery was not yet complete. Second, CONSOL posits theSecretary filed its motion in bad faith “toexert inappropriate pressure on Respondent for exercising rights of discoveryand a hearing.” (Resp. at 4.) However, I find no indication of bad faithbecause an objective reading of the alleged violation in Citation No. 9568130could justify a highnegligence determination. Third, given this is the Secretary’s first proposedamendment in this case, the repeated failure to cure deficiencies by previousamendments is inapplicable. Fourth, the amendment is not futile because theSecretary could reasonably prove high negligence at trial. 

 

Fifth, I must determine if grantingthe motion to amend unduly prejudices Respondent. TheCommission has held that “[m]ere allegations of potential prejudice or inherentprejudice should be rejected,” and the non-moving party must demonstrate morethan a danger of prejudice to show actual prejudice. *Long Branch Energy*,34 FMSHRC 1984, 1992–93 (Aug. 2012). While CONSOL argues the proposedamendment would prejudice CONSOL since it is still “early in the process,”CONSOL’s argument is exactly contrary to Commission case law. (Resp. at 4.) Here, the Secretary filed her motion to amend on March 30,2023, before the hearing was scheduled. Thereafter, on April 14, 2023, Ischeduled this case in consultation with the parties to be heard—more than fourmonths later—on August 23, 2023. In determining undue prejudice, CommissionAdministrative Law Judges have found no prejudice for amendments made with significantlyless time before hearing, including amendments made at hearing. *See HigmanSand & Gravel, Inc.*, 18 FMSHRC 951, 958–59 (June 1996) (ALJ) (grantingSecretary’s amendment and finding no prejudice where amendment was made for thefirst time at the hearing); *Bob Bak Constr.*, 28 FMSHRC 817, 822–23 (Sept. 2006) (ALJ) (grantingSecretary’s motion to amend pleading to add an alternative standard and findingno prejudice where amendment was first made at hearing). Early notice hereweighs in favor of finding the amendment nonprejudicial.

 

Respondentalso argues “it is premature to overrule the negligence designation ofthe Inspector.” (Resp. at 2.) Yet this argument is inapposite. The Secretary isallowed to conform her pleadings to the evidence.*See Cyprus Empire Corp.*, 12 FMSHRC at 916 (finding that changes in the nature ofthe petitioner’s claims or legal theories are permissible purposes foramendment).Further, the parties have justbegun to actively engage in discovery. (Resp. at 2.) The Secretary’s amendment—a change in the degree ofnegligence alleged in the pleadings— does not change the underlying facts and wouldnot appear to require additional discovery. *See New NGC, Inc.*, 35FMSHRC 3225 (Sept. 2013) (ALJ) (finding no prejudice in case not yet scheduledfor hearing and granting motion to amend to allege violations of twoalternative safety standards where the Secretary relied on facts already statedin the citation). Although the amendment gives notice of the intent to arguehigh negligence, regardless of what the Secretary pleads she must still educeevidence at hearing to prove the allegation. 

 

            Under Federal Rule of Civil Procedure 15(a) andCommission case law, Commission Judges may liberally grant amendments topetitions when justice requires. Given the lack of prejudice to Respondent, aswell as the lengthy notice provided in advance of the hearing date, I concludethat allowing the Secretary to amend the pleading is appropriate.

 

**III.  ORDER**

 

WHEREFORE, it is hereby **ORDERED**that the Secretary’s Motion to Amend Petition is **GRANTED**.

 

 

 

/s/Alan G. Paez

Alan G. Paez

Administrative Law Judge

 

 

Distribution: (Via Electronic Mail Only)

 

J. MatthewMcCracken, Esq., U.S. Department of Labor, Office of the Solicitor, Division ofMine Safety and Health, 201 12th Street South, Suite 401, Arlington, VA22202-5450

(mccracken.john.m@dol.gov)

 

JamesP. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329-2548

(jmchugh@hardypence.com)

 

/gw