Pattison Sand Company, LLC

Plain-English summary

MSHA cited hazardous cracked and loose ground extending about 242 feet at Pattison Sand's mine and restricted the area to miners correcting the condition. Pattison argued that this restriction effectively closed the entire mine and exceeded the authority of a section 104(a) citation. The Secretary submitted evidence disputing that characterization. Judge Gary Melick found that the company's dismissal and summary-decision motions depended on contested facts about the citation's actual effect. He denied both motions and reserved the dispute for a full evidentiary hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.3200
• Outcome: Pattison's motions to dismiss and for summary decision were denied.
• Key point: Summary decision is unavailable when the parties dispute whether a restricted hazardous area effectively shut down the entire mine.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

December 29, 2011

PATTISON SAND COMPANY, LLC,  

Contestant   

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent    

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CONTEST PROCEEDING

Docket No. CENT 2012-65-RM

Citation No. 8660155; 10/20/2011

Mine ID: 13-02297

Pattison Sand Company Mine

ORDER DENYING CONTESTANT’S MOTION TO DISMISS

AND MOTION FOR SUMMARY DECISION

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., (“the Act”). Pattison Sand Company, LLC (“Pattison”) is contesting Citation No. 8660155
issued by an inspector for the Department of Labor’s Mine Safety and Health Administration
(MSHA) for a violation of the standard at 30 C.F.R. § 57.3200. That standard provides as follows:

Ground conditions that create a hazard to persons shall be taken down or supported
before other work or travel is permitted in the affected area. Until corrective work is
completed, the area shall be posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede unauthorized entry.

The citation was issued on October 20, 2011 and the case was thereafter scheduled for
expedited hearings to commence on November 8, 2011. The citation was terminated however on
October 25, 2011 after the alleged violative conditions were abated. Since expedited hearings were
no longer necessary, the hearings were cancelled.

Contestant thereafter filed the motion to dismiss and motion for summary decision now
before me. Under Commission Rule 67(b) “[a] motion for summary decision shall be granted only
if the entire record including the pleadings, depositions, answers to interrogatories, admissions and
affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the moving
party is entitled to summary decision as a matter of law.”

In connection with its motion for summary decision Contestant set forth the following
alleged undisputed facts:

1. On October 20, 2011, Inspector Anthony D. Runyon, a designated representative of
MSHA, issued the Citation to Pattison Sand for an alleged violation at the Pattison Sand Company
Mine. Exhibit A (omitted).

2. The Citation was issued under Section 104(a) of the Mine Act. It alleges moderate
negligence, an S&S violation of 30 C.F.R. § 57.3200, a reasonable likelihood of injury or illness, and
a reasonable expectation of lost of workdays or restricted duty. Id

3.         The Citation alleges:

Ground conditions that create a hazard to miner were not taken down or
supported before work and travel active was allowed to presume between isle
4AI and 4AF. Multiple cracks and loose material is visible in this area. The
south side of 4AF shows visible signs of separation and loose material. The
crack then travels from 4AF to 4AG north side showing in some area
approximately 4 inch deep cracks into the back continuing on to south side
of 4AG to a brow where multiple cracks exist ranging from 4 to 12 inch into
the back and approximately 6 inch wide, the crack continues to the south side
of 4AH with a single crack to north side of 3AI where multiple crack exit
from the single crack to the south side of 3AI. The total length of the crack
is approximately 242 feet long.

Spalling or commonly known as pinch out as also occurred on the north half
of pillar 4AI where the rib and back meet for approximately 25 feet. The
pinch out measured approximately 6 feet down from the back and 3 feet into
the pillar giving it a V shape at the top of the pillar.

This area was mechanical scale 7 days ago and has been hand scaled since
then giving an impression that not only scaling will be enough to control this
material from cracking an falling.

A daily inspection from a high lift has not been conducted as required by
ground control plan.

This mine has strong history of back and rib falls causing injuries to miners.

Id

4.                     The Citation set the termination due date as October 28, 2011. Id     

5.                     In reference to the termination due date, Inspector Runyon wrote the
following on the Citation: 

The termination due date has been extended to allow the Mine
Operator time to correct the cited condition on the basis that only
miners correcting the condition are allowed in the cited area.

6.                     Inspector Runyon modified the Citation on October 20, 2011 correcting
typographical errors and deleting entirely the allegations in the second and
third paragraphs of the Citation narrative. Id.

7.                     Inspector Runyon terminated the Citation on October 20, 2011. Id

While these facts (except for the date the citation was terminated) indeed appear to be
undisputed, Contestant, in its arguments, then intermingles other alleged material facts which are
clearly in dispute, including its assertion that the subject citation was actually a withdrawal order
closing down the entire mine. The Secretary has submitted an affidavit and documentation to dispute
the latter allegations. Underlying both motions is Contestant’s argument that the provisions of the
citation limiting access to the cited hazardous area to “only miners correcting the condition” closed
the entire mine and, as such, is not permitted under section 104(a) of the Act.

Since both motions are premised on the same disputed factual allegations both motions must
be denied and the disputed issues reserved for full evidentiary hearings.

Order

Contestant’s motion to dismiss and motion for summary decision are denied.

/s/ Gary Melick

Gary Melick

Administrative Law Judge

202-434-9977

Distribution: (Certified Mail)

Jamison P. Milford, Esq., Office of the Regional Solicitor, U.S. Department of Labor, Two
Pershing Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108

David Farber, Esq., Henry Chajet, Esq., and Brian Hendrix, Esq., Patton Boggs, LLP, 2550 M.
Street, NW, Washington, DC 20037

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