Hunter Sand & Gravel, LLC v. Secretary of Labor and Secretary of Labor v. Hunter Sand & Gravel, LLC

Plain-English summary

Five citations and orders followed a fatal accident in which a dredge hand slipped from a snow- and ice-covered barge walkway into the water. Hunter Sand & Gravel initially disputed MSHA jurisdiction but withdrew that challenge before the summary-decision ruling. Judge David F. Barbour therefore granted the Secretary's motion on jurisdiction over Dredge IV and Barge MEM 611. He denied summary decision on the citation alleging that snow was not cleared as soon as practicable because the record disputed the conditions when the barge arrived, whether clearing in darkness and poor weather was feasible, and whether the temporary barge walkway was regularly used. Those factual questions required the scheduled hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11016
• Outcome: MSHA jurisdiction was established, but summary decision on the snow-and-ice citation was denied.
• Key point: Whether a walkway was regularly used and whether snow removal was practicable under the actual weather and operating conditions are fact questions unsuitable for summary decision on a disputed 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, DC
20004-1710

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

HUNTER
SAND & GRAVEL, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

HUNTER
SAND & GRAVEL, LLC ,

Respondent

CONTEST
PROCEEDINGS

Docket
No. KENT 2014-391-RM

Citation
No. 8728537; 2/25/2014

Docket
No. KENT 2014-392-RM

Order
No. 8728538; 2/25/2014

Docket
No. KENT 2014-393-RM

Order
No. 8728539; 2/25/2014

Docket
No. KENT 2014-394-RM

Order
No. 8728540; 2/25/2014

Docket
No. KENT 2014-395-RM

Citation
No. 8728541; 2/25/2014

Mine:
Dredge IV

Mine
ID: 15-17687

CIVIL
PENALTY PROCEEDINGS

Docket
No. KENT 2014-566-M

A.C.
No. 15-17687-350333

Docket
No. KENT 2015-75

A.C.
No. 15-17687-362767

Mine:
Dredge IV

ORDER GRANTING
IN PART & DENYING IN PART MOTION FOR PARTIAL SUMMARY DECISION

Before:                        Judge
Barbour

These cases are
before me upon notices of contest filed by Hunter Sand & Gravel, LLC,
(“Hunter”) and civil penalty petitions filed by the Secretary of Labor
(“Secretary”), acting on behalf of his Mine Safety and Health Administration
(“MSHA”), pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (“Act”), 30 U.S.C. §§ 815, 820. In the two Civil Penalty
dockets, the Secretary seeks a civil penalty in the amount of $152,820.00 for
four alleged violations of the Secretary’s safety and health standards for the
nation’s surface metal and nonmetal mines and one alleged violation of the
Secretary’s training and retraining standards for miners engaged in shell
dredging or employed at sand or gravel mines. All five

violations
relate to a fatal accident on December 10, 2013, when the Secretary alleges a dredge
hand walked onto a snow and ice covered barge (“Barge MEM 611”) at the
company’s Dredge IV mine and slipped and fell into the water.

On
a conference call dated July 28, 2015, the parties informed the court that a
dispute over MSHA’s jurisdiction in this matter was impeding settlement
efforts, and the parties requested that the court resolve the dispute through
summary decision. The court agreed to the request provided that the parties
could present the court with no genuine dispute over material facts, preferably
by stipulating to all material facts. The court subsequently scheduled a
December 8, 2015, hearing on this matter. On October 5, 2015, the Secretary
filed a Motion for Partial Summary Decision with an accompanying Memorandum of
Law in Support (“Sec’y Br.”) and attached exhibits. In its motion, the
Secretary asserted that MSHA had jurisdiction to issue the five citations and
orders in this proceeding, and requested that the court affirm that Hunter
violated 30 C.F.R. § 56.11016
in Citation No. 8728537 by failing to clear snow from the walkway of Barge MEM
611 on December 10, 2013, as soon as practicable. Sec’y Br. 1-2.

On
October 15, 2015, Hunter responded with a Statement in Opposition to the
Secretary’s Motion for Partial Summary Decision and Memorandum of Law in
Support (“Resp’t Br.”). In its Statement, the company withdrew its contest to
what it deemed “the Secretary’s relatively narrow exercise of jurisdiction over
Dredge IV and Barge MEM 611 in this proceeding.” Resp’t Br. 2. However, Hunter
opposed granting partial summary decision on Citation No. 8728537 on the basis
that the record raises genuine issues of material fact. Resp’t Br. 2. The
Secretary subsequently filed a Reply Brief (“Sec’y Reply Br.”) in further
support of his position.

Commission Rule 67(b) provides that a
“motion for summary decision shall
be granted only if the entire record, including the pleading, 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). When considering a motion for summary
decision, the court looks at the record “‘in the light most favorable to . . .
the party opposing the motion,’ and . . . ‘the inferences to be 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 motion.”’ Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Poller v. Columbia Broadcasting
Sys., Inc., 368
U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

Here, the burden
is on the Secretary, as the moving party, to establish his right to summary decision.
On the issue of jurisdiction, I find no genuine dispute as to any material fact
as neither party now contests that MSHA had jurisdiction to issue the five
citations and orders in this proceeding. However, the Secretary has failed to
meet his burden to establish his right to summary decision on Citation No.
8728537.

30 C.F.R. § 56.11016 establishes that,
“[r]egularly used walkways and travelways shall be sanded, salted, or cleared
of snow and ice as soon as practicable.” The Secretary cites the Black’s Law
Dictionary definition of “practicable” as “reasonably capable of being
accomplished; feasible in a particular situation” and argues that it would have
been “feasible for Hunter to clear the snow from the walkways before sending
its miners out to walk on them.” Sec’y Br. 12. Hunter, in turn, states that the
record “calls into question the presence of and extent of such alleged snow
conditions on the Barge at the time of arrival, and suggests that such efforts
may have been unwarranted at the time,” as well as “simultaneously fruitless
and treacherous” due to darkness and unfavorable weather conditions. Resp’t Br.

8. The Secretary replies that “Hunter sent at least one miner out onto the
   walkways of Barge MEM 611 to obtain a draft reading before [the fatal accident
   occurred]” and thus the company’s claim that it was “unsafe to clean the snow
   from the barge’s walkways, but that, at the same time, it was safe to send
   miners out on to the barge MEM 611’s walkways in order to continue production
   evidences very little care for the health and safety of its miners.” Sec’y
   Reply Br. 4. Whether or not this is true, Hunter has raised genuine issues of
   material fact as to the practicability of clearing snow from the barge before
   the fatal accident occurred.

Furthermore, the
company disputes whether Barge MEM 611 was a “regularly used” walkway or
travelway, since moveable barges “arrive, are loaded and depart from Dredge IV
within the short period of three to six hours.” Resp’t Br. 10. The Secretary
however believes that the record is sufficient to establish regular use because
the allegedly uncontroverted testimony of three miners shows that “(1) miners
regularly traveled [other] barge walkways [at the mine] when they were covered
with snow and (2) that miners traveled the walkways of Barge MEM 611 prior to
the time that [a miner] fell overboard.” Sec’y Reply Br. 3. The court agrees
with Hunter that in addition to issues of practicability this dispute raises
genuine issues of regularity that also must be resolved through the hearing
process.

ORDER

In accordance with the foregoing, the Secretary’s motion for
partial summary decision is GRANTED IN PART on the issue
of whether MSHA had jurisdiction to issue the five citations and orders in this
proceeding. The Secretary’s motion is DENIED IN PART on the issue of
whether Hunter violated 30
C.F.R. § 56.11016 in
Citation No. 8728537. The hearing on these matters will proceed as scheduled on
Tuesday, December 8, 2015, at 8:30 a.m. in Paducah, Kentucky.

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Willow
E. Fort, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church Street,
Ste. 230, Nashville, TN 37219

Robert
Nienhuis, Esq., Hunter Sand & Gravel, LLC, One Memorial Drive, Ste. 1000,
St. Louis, MO 63102

/rd