Secretary of Labor v. Couch Aggregates, LLC

Plain-English summary

A Couch Aggregates miner was injured in an electrical control room, and MSHA cited the operator for not reporting within 15 minutes an accident that allegedly had a reasonable potential to cause death. Couch sought partial summary decision, arguing that the miner recovered quickly and that the company lacked timely notice of a potentially fatal injury. The Secretary disputed the asserted facts and identified unresolved questions about the injury's severity, whether the miner suffered an electrical shock, and whether and how long he lost consciousness. Judge David P. Simonton held that those material factual disputes required a hearing and denied the motion. A separate electrical-control citation in the consolidated dockets was not at issue in the motion.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.10(b) and 56.12040
• Outcome: Couch Aggregates' motion for partial summary decision was denied, and the consolidated cases remained set for hearing.
• Key point: Whether an accident had a reasonable potential to cause death could not be resolved summarily while the injury facts and the operator's knowledge remained disputed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th Street,
Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

September 6,
2016

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH    

ADMINISTRATION,
(MSHA),

Petitioner,

v.

COUCH
AGGREGATES, LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. SE 2014-455

A.C.
No. 01-03130-357670

Docket
No. SE 2015-29-M

A.C.
No. 01-03130-363329

Mine:
B & R Sand & Gravel

ORDER DENYING RESPONDENT’S
MOTION FOR PARTIAL SUMMARY DECISION

Before:           
Judge Simonton

On
August 11, 2016, the Respondent filed with the undersigned a Motion for Partial
Summary Decision and Incorporated Memorandum in the above-captioned
proceedings.[1]
On August 24, 2016, the Secretary filed a Response, opposing the Respondent’s
Motion.         

The
relevant undisputed facts are as follows: [2]

·        
On
May 28, 2014, Bobby Stroud was a miner and employee of Couch Aggregates at the
B & W Sand & Gravel Mine.

·        
On
May 28, 2014, Mr. Stroud was involved in an incident in the electrical control
room that resulted in his injury.

·        
On
June 3, 2014, MSHA Inspector Timothy S. Schmidt issued Citation No. 8834740 for
a violation of 30 C.F.R. §50.10(b) for failure to notify MSHA within 15 minutes
of an accident occurring at a mine which had a reasonable potential to cause
death. The Secretary assessed a penalty of $5,000.00.

·        
On
June 3, 2014, MSHA Inspector Timothy S. Schmidt issued Citation No. 8834742
alleging a violation of 30 C.F.R. §56.12040. The citation alleged that Couch
Aggregates violated the standard because operating controls for the starters in
two electrical disconnect boxes were not located so that they could be operated
without danger of contacting energized conductors. The Secretary assessed a
penalty of $17,800.00.

The
Respondent argues that Partial Summary Decision should be granted because the alleged
undisputed facts establish that no injury with the reasonable potential to
cause death occurred, and Couch Aggregates was never on notice that an accident
with an injury with the reasonable potential to cause death occurred. The
Respondent argues that by the time Couch Aggregates learned of the purported
injury to Mr. Stroud, it was already apparent that the injury did not have a
reasonable potential to cause death. Because Mr. Stroud recovered from the
incident so quickly, the operator was not required to notify MSHA within the requisite
15 minute time frame. Therefore, the Respondent argues that the Motion for
Partial Summary Decision should be granted.

The
Secretary argues that none of the facts provided by the Respondent are
undisputed because the Secretary has not been able to verify their accuracy
through discovery. The Secretary argues that none of the provided evidence has
been properly verified or supported by reference to affidavits or other
verified documents. Aside from disputing or partially disputing each provided
fact, the Secretary provides additional facts that the Respondent has yet to
stipulate are true or undisputed. Even if the Respondent’s facts are
undisputed, the Secretary argues that genuine issues of material of fact exist
regarding the severity of Mr. Stroud’s injury, whether an electrical shock
occurred, and whether Mr. Stroud experienced unconsciousness. Therefore, the
Secretary argues that the Contestant’s Motion for Summary Decision should be
denied.

The Court may grant summary decision
where the “entire record…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); see also UMWA, Local 2368 v. Jim
Walter Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining,
17 FMSHRC 1313, 1316 (Aug. 1995) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986), which interpreted Fed.R.Civ.P. 56). The Commission has
analogized its Rule 67 to Federal Rule of Civil Procedure 56, which authorizes
summary judgments upon a proper showing of a lack of a genuine, triable issue
of material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan.
2007). A material fact is “a fact that is significant or essential to the issue
or matter at hand.” Black's Law Dictionary (9th ed. 2009, fact). “There
is a genuine issue of material fact if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in its
favor.” Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258,
1263 (11th Cir. 2007)(citation omitted). The court must evaluate the evidence “in
the light most favorable to … the party opposing the motion.” Hanson
Aggregates, 29 FMSHRC at 9. 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 motion.” Id. Though the
moving party bears the initial burden of informing the court of the basis for
its motion, it is not required to negate the nonmoving party’s claims. Celotex,
477 U.S. at 323. “When the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts .... Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’” Scott v. Harris, 550 U.S. 372,
380 (2007) (citation omitted).

In
the instant case, there are clearly genuine issues of material fact in dispute
such that summary decision must be denied. The Secretary’s response disputes
part or all of the facts that the Respondent alleges are undisputed concerning
the events surrounding the citation. Most important among these issues is the
extent of Mr. Stroud’s injuries, whether Mr. Stroud lost consciousness and if
so for how long, and whether that period of time suffices to categorize the
injury as reasonably likely to cause death. In addition, there remains dispute regarding
the reasons and motives behind Couch Aggregate’s decision not to notify MSHA of
the injury at any time during or after the event. These dockets are scheduled
to be heard on October 27-28, 2016 in Montgomery, AL, at which time the parties
can present evidence concerning the incident event giving rise to the citation
and the events that preceded and followed it. Accordingly, the Respondent’s
Motion for Summary Decision is DENIED.

/s/ David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Kristin R. Murphy, Attorney, Office of
the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Room 7T10,
Atlanta, GA 30303

Jonathan T. Holloway, Attorney, Holloway
& Hardy, PLLC, 369 N. Main Street, Crestview, FL 32536

[1]
Respondent’s motion requests Summary Decision. However, Dockets SE 2014-455 and
SE 2015-29 were consolidated on December 11, 2015. In their Motion for Summary
Decision, the Respondent only requests summary judgment for Docket SE 2014-455,
and only addresses that citation in their argument. Thus, the Respondent’s
Motion will be read as seeking Partial Summary Decision.

[2]
In its motion, Respondent lists undisputed facts mandating relief, all of which,
Respondent claims, are taken entirely from documents produced by MSHA. In its
response, the Secretary disputes all or part of each of these facts. Therefore,
the relevant facts listed above include only those portions that are not
disputed by either party.