Secretary of Labor v. Webster County Coal, LLC

Plain-English summary

MSHA cited Webster County Coal after three miners working alone were found with their required multi-gas detectors switched off. The operator argued that the standard required only furnishing functioning detectors, so the citations should be dismissed as a matter of law. Judge Priscilla M. Rae held that the Mine Act's protective purpose requires specific and diligent supervision and enforcement, not merely handing miners the devices. Whether the company adequately enforced detector use presented disputed facts that required a hearing. The motion for partial summary decision was denied.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1714-7(a)
• Outcome: The operator's motion for partial summary decision on three gas-detector citations was denied.
• Key point: Providing a required gas detector includes diligent on-site enforcement of its use, and whether that duty was met must be decided on a factual record.

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, D.C.
20004

Telephone: 202-434-9958

April
3, 2014

SECRETARY
OF LABOR,

�MINE
SAFETY AND HEALTH

�ADMINISTRATION,
(MSHA),

�������������
Petitioner

����������
v.

WEBSTER
COUNTY COAL, LLC,

�������������
�Respondent� �

�
��������� �CIVIL PENALTY PROCEEDING

�
��������� Docket No. KENT 2013-510

�
��������� A.C. No. 15-02132-311939

�
��������� Dotiki Mine

ORDER
DENYING RESPONDENT'S MOTION FOR PARTIAL SUMMARY DECISION

Before: Judge Rae

This docket is
before me on petition for assessment of a civil penalty filed by the Secretary
pursuant to Section l05(d) of the Federal Mine Safety and Health Act of 1977,
as amended, 30 U.S.C. � 815(d) (the "Mine Act").

Webster County
Coal, LLC, ("Respondent" or "WCC") was cited by Mine Safety
and Health ("MSHA") inspector Sparks on November 13,2012 for several
alleged violations, three of which Respondent seeks to have summarily dismissed
as a matter of law. The three subject citations allege a violation of mandatory
standard 30 C.F.R. �75.1714-7(a) which provides, "[a] mine operator shall
provide an MSHA-approved, handheld, multi-gas detector that can measure
methane, oxygen, and carbon monoxide to each group of underground miners and to
each person who works alone, such as pumpers, examiners, and outby
miners."

The citations
were issued by Sparks when he observed miners working alone in three different areas
of the mine with their multi-gas detectors switched off. The citations note
that the operator was cited with this standard several times in the preceding
two years. It is the Secretary's position that the operator knew or should have
known that the miners were engaging inthis pattern of behavior of turning off
the gas detectors and should have done more to ensure they were being used
properly. Respondent asserts that the operator need only "provide" or
furnish the miners with the detectors within the plain meaning of the standard.
For the reasons set forth below, I concur with the Secretary's interpretation
of the standard and further find additional facts relating to the operator's
conduct are necessary to determine whether the violations have occurred. I
therefore DENY the Respondent's motion for summary decision.

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)).

There is a
paucity of case authority discussing the meaning of the term
"provide" as it relates to the cited standard. In an effort to give
meaning to the term, Respondent asserts that the Commission has relied upon the
plain meaning of a term when not defined by statute or regulation. (Citations
omitted.) The plain meaning of "provided", then, can be determined by
Merriam-Webster's Dictionary which defines it as "to supply what is
needed, to supply for use,to take measures beforehand." WCC asserts that
because it gave each miner the detector that functioned properly when tested,
it has complied with the regulation. An analogy is made by WCC to the language
in mandatory standard 30 C.F.R. �77.1710(g) which states an employee "shall
be required to wear" safety belts and harnesses when there is a danger of
falling. It cites several cases for the proposition that the Commission has
interpreted the language in that standard to mean an operator need do nothing
more than have fall protection available for the miners' use. The Respondent
has misread these cases. In Southwestern Illinois Coal Corp., the operator had
given all miners its safety program booklet, provided a seminar in the use of
fall protection and had a disciplinary program in effect for violations of
mandatory rules and regulations. The Commission held that it had still violated
the standard when a miner was found working at elevation without fall
protection. This was because the operator failed to show specific and diligent
on-site enforcement action. The Commission stated "when an operator
requires its employees to wear belts when needed, and enforces that
requirement, it has discharged its obligation under the regulation." Southwestern
Illinois Coal Corp, 5 FMSRHC 1675. (Emphasis added.) None of the remaining
cases cited by Respondent holds otherwise.

At heart in
determining the proper meaning of terms such as "shall be required to
wear" or in this instance "shall be provided" is the overall
protective purpose of the Mine Act and the specific standard at issue. See The
American Coal Co., 29 FMSHRC 941 (Dec. 2007) (An escapeway that was not easily
accessed from other working areas of the mine was not "provided"
within the meaning of the standard.). If the operator were required to do
nothing more than hand each miner a multi-gas detector on his first day of
employment at the mine, this standard would be a hollow one. The standard is
designed to protect miners against being overcome by dangerous gases while
working alone and unable to call for help. Miners do not always do what is most
prudent when left to their own devices. It is, therefore, the operator's
responsibility under the Act and its mandatory standards to provide them with
adequate protection from safety and health hazards. It discharges this duty by
employing specific and diligent on-site supervision and enforcement action.
Whether this obligation was properly undertaken by WCC cannot be determined at
this juncture, making summary decision unavailable here. It is a question of
fact reserved for a hearing on the merits.[1]

The Respondent's
motion for summary decision is DENIED.

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

Priscilla M. Rae

Administrative
Law Judge

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

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Distribution:

Gary D. McCollum, Esq., Assistant
General Counsel, Webster County Coal, LLC, 771 Corporate Drive, Ste 500,
Lexington, KY 40503

Donna E. Sonner, Esq., Office of
the Solicitor, U.S. Department of Labor, 618 Church Street, Ste. 230,
Nashville, TN 37219-2440

[1]
A hearing
on this matter has been previously scheduled to commence on April 16, 2014 in
Henderson, KY.