Secretary of Labor, MSHA v. Martin Marietta Materials, Inc.

Plain-English summary

An MSHA inspector found that the headlights on a skid-steer loader at Martin Marietta's daylight-only quarry did not work. The lights had worked the previous day, and the loader had not yet been inspected or used on the day of the citation. Judge Priscilla M. Rae held that the Secretary did not show when the defect arose, that the operator knew or should have known of it, or that it would not have been repaired after the required pre-use inspection. She also rejected the alternative claim under section 56.14100(c) because the loader had never been operated with the defective lights. The citation was vacated and the case dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14100(b) and 56.14100(c)
• Outcome: The Secretary's summary-decision motion was denied, the sole citation was vacated, and the proceeding was dismissed.
• Key point: A newly arisen equipment defect does not violate the timely-repair or removal-from-service rules without proof of operator notice or continued operation in the defective condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

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

February 18, 2014

SECRETARY OF LABOR,

�� MINE SAFETY AND HEALTH��

�� ADMINISTRATION (MSHA),

����������������������� �� �Petitioner

����������������������� v.

�MARTIN MARIETTA MATERIALS,

�� INC.,

����������������������� �� �Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2013-332-M

A.C. No. 23-00141-315058

Mine: Greenwood Quarry

ORDER DENYING SECRETARY�S MOTION FOR SUMMARY DECISION

Before:����������� Judge Rae

����������� This docket is
before me on a petition for assessment of penalty filed by the Secretary
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 815 et seq. (2000) (the �Act�). On January 8, 2014, I granted the
Secretary�s motion to plead in the alternative alleging a violation of 30
C.F.R. �56.14100(b) as originally cited by the Mine Safety and Health
Administration (�MSHA�) inspector as well as a violation of 30 C.F.R.
�56.14100(c) in the alternative. This single citation docket arises from an
inspection conducted by Rickie Knupp on October 23, 2012 at the Greenwood
surface limestone quarry operated by Martin Marietta Materials, Inc. (�Martin
Marietta�) in Greenwood, Missouri. The facts surrounding the alleged violation as
set forth below are uncontested by the parties and on January 31, 2014 the
Secretary filed a Motion for Summary Decision in accordance with Section
2700.67 of the Federal Mine Safety and Health Review Commission�s Procedural
Rules, 30 C.F.R. � 27.00.67 which the Respondent has opposed. For the reasons
set forth herein, I DENY the Secretary�s Motion and VACATE the sole citation.��������

�����������������������������������������������������������������������������������������������������������������������

����������� Summary
Decision Standards

����������� Commission
Rule 67 sets forth the guidelines for granting summary decision:

(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.

29
C.F.R. �2700.67(b).

The Commission �has long recognized that
[ ] �summary decision is an extraordinary procedure,� and has analogized it to
Rule 56 of the Federal Rules of Civil Procedure, under which the Supreme Court
has indicated that summary judgment is authorized only �upon proper showings of
the lack of a genuine, triable issue of material fact.�� Hanson Aggregates
New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining
Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary
judgment, the court must evaluate the evidence in �the light most favorable
to�the party opposing the motion.� Hanson Aggregates at 9 (quoting Poller
v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962). Any inferences �drawn
from the underlying facts contained in [the] materials [supporting the motion]
must be viewed in the light most favorable to the party opposing the motions.��
Hanson Aggregates at 9 (quoting Unites States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)).

��

The issues presented in this penalty
proceeding are whether the defective head lights on a skid steer loader
violated either subsection (b) or (c) of mandatory standard section 56.14100. Subsection
(b) requires the operator to correct in a timely manner defects on equipment
that affect safety while subsection (c) requires the operator to remove from
service defective equipment when continued operation of such would be
hazardous. Subsection (a) of that standard requires the operator to inspect all
self-propelled mobile equipment to be used during a shift before it is placed
in operation. 30 C.F.R. �56.14100.

�� ����������� Findings
of Fact and Legal Analysis

��������������������������������������������������������������

��������������� The undisputed facts are that on October 23, 2012,
MSHA inspector Rickie Knupp was conducting an inspection at the Greenwood
quarry. While accompanied by Martin Marietta personnel, Harry Danforth and
Chris Bollinger, he inspected the cited Case 1840 skid loader located in the
equipment shop. He found that the headlights were not functioning on the loader
at that time. The loader had been used the day before and the headlights had
worked properly. The loader had not been put into use on the day of the inspection
and Knupp was informed by Lambert that it had not yet been inspected for use
that day. It was not locked or tagged out to prevent use when Knupp inspected
it. A faulty switch was found to be the culprit, which was replaced by Danforth
and the violation was abated by Knupp when he rechecked it the following day. The
loader is used to clean up the primary and secondary crusher areas of the mine
during the day. The mine does not operate a night shift.

The Secretary alleges a violation of subsection
(b) of the cited standard based upon the theory that the Act imposes strict
liability for this violation even taking into consideration the �timely manner�
language incorporated into this subsection. He argues that because the lights
did not work when inspected, although working the day before, the operator
should have known about the faulty switch and corrected it or taken it out of
service �at least after a pre-shift examination.� Sec�y�s Motion. He cites
several cases in support of his position but does not present any evidence to
ascertain when the operator first knew or should have known of the defect as
required by law. See Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001)
(ALJ properly vacated a citation where the Secretary could not prove a defect
was known to operator, how long it existed and that it was not corrected in a
timely manner); Barrett Paving Materials, Inc., 15 FMSHRC 1999 (Sept.
1993) (citation vacated where there was no evidence of length of time defect
existed or equipment examined); Sweetman Construction Co., 21 FMSHRC 101
(Jan. 1999) (ALJ) (violation established because defective truck was in use at
the time the inspector found the defect); Walker Stone Company, 20
FMSHRC 1225 (Oct. 1998) (ALJ) (violation established where the operator had
been using equipment without functioning headlights for a long period of time
due to a lack of knowledge that MSHA required them).

�����������������������������������

The undisputed evidence is that the
lights had functioned the day before the inspection. The equipment had not yet
been put into service that day and the pre-use inspection had not yet been
done. The Secretary, under these set of facts, cannot establish that the
operator knew or should have known of the defect or that it would not have
fulfilled its duties under subsection (a) of the standard and performed the
pre-use inspection, thereby identifying and repairing the defect in a timely
manner before the loader was put to use.

The Secretary argues in the alternative
that the facts establish a violation of subsection (c) because at �some point,
the non-functioning headlights on the skid loader would rise to the level of a
hazardous defect.� The loader was still available for use as it lacked a tag or
other indication that it should not be used in its present condition. Again,
the Secretary cites several cases in support of his position which in fact do
not support it. First he cites LaFarge North America, 35 FMSHRC 2472
(Dec. 2013) in which the Commission remanded the case where the ALJ vacated a
citation issued in section 56.14100(c) for lack of notice of the standard of
measurement to be used for play in ball joints. The �continued operation� of
defective equipment was not at issue in this case. It next cites North Idaho
Drilling, Inc., 35 FMSHRC 2472 (Aug. 2013) (ALJ). This case is illustrative
of the significance of the language �continued operation� contained in
subsection (c) of this standard and why it does not apply in the instant case. Judge
Manning found a violation where the outrigger float on a crane was damaged and
could have led to its capsizing and endangering miners. The crane had been in
use for 45 minutes when the inspector cited it.�� Judge Manning found that the
�respondent used the crane while the damage to the float and outrigger existed....�
Similarly, Judge Miller found a violation of this subsection where a faulty
brake light had been recorded repeatedly in the pre-use examination book and
had been found in service when cited. Boart Longyear Co., 34
FMSHRC 2715 (Oct. 2012). ���

As the Respondent correctly argues,
there is no evidence of �continued operation� as required by the standard and
as underscored by cases cited above. The headlights had functioned the day
before, the skid loader had not yet undergone its pre-use inspection and it had
not been used since its headlights ceased to function. There is no evidence
that the operator would have failed to conduct this required inspection
identifying the defect and repairing it before placing it into operation. There
was no instance in time at which the operator could have known or should have
known that the defect existed nor is there any evidence that the loader would
have been used again in its defective condition.

�� �For the reasons set forth
herein, the citation is VACATED and the matter is DISMISSED.

�������������������������������������������������������������������������������������������������� /s/
Priscilla M. Rae�� �

�������������������������������������������������������������������������������������������������� Priscilla
M. Rae

�������������������������������������������������������������������������������������������������� Administrative
Law Judge

Distribution:

�Susan J. Willer, Esq., U.S.
Department of Labor, Office of the Solicitor, Two Pershing Square, 2300 Main
Street, Ste. 1020, Kansas City, MO 64108

Scott Wircenske, Martin
Marietta Materials, Inc., 7381 W. 133rd Street, Overland Park, KS
66213