Secretary of Labor v. Blanchard Machinery Company (ALJ decision, January 9, 2018)

Plain-English summary

MSHA cited Blanchard Machinery after finding a partly filled five-gallon safety can with apparent gasoline in a service truck and no label identifying its contents. The Secretary asked to change the cited standard from the hazardous-chemical labeling rule in 30 C.F.R. § 47.41(a)(1) to the flammable-liquid safety-can rule in 30 C.F.R. § 56.4402 and to revise the alleged condition. Blanchard argued that the amendment was futile because the temporary-container exception in section 47.44 applied. Judge Alan G. Paez found genuine factual disputes over whether the can qualified for that exception, while Blanchard showed no delay, bad faith, repeated deficiency, or prejudice. He granted the amendment without deciding whether the company ultimately violated the revised standard.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 47.41(a)(1), 47.44, and 56.4402
• Outcome: The Secretary's motion to amend Citation No. 8792386 was granted, and the penalty case continued.
• Key point: A citation amendment is not futile when material facts remain disputed about whether the operator qualifies for a regulatory exception.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

January 9, 2018

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. SE 2017-236-M

Petitioner,

:     A.C. No. 38-00600-443931 (1BU)

v.

:

:

:

BLANCHARD

MACHINERY COMPANY,

:     Mine: Haile Gold Mine

Respondent.

:    

ORDER GRANTING SECRETARY’S MOTION TO AMEND

PLEADING

AND

ORDER ACCEPTING

APPEARANCE

This case is before me upon the Petition for the Assessment of Civil

Penalty filed by the Secretary of Labor (“Secretary”) pursuant to section 105

of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),

30 U.S.C. § 815. It is hereby ORDERED that Conference and

Litigation Representative (“CLR”) Brandon E. Russell be accepted to represent

the Secretary in accordance with the Notice of Limited Appearance he filed with

the penalty petition. Cyprus Emerald Res. Corp. , 16 FMSHRC 2359 (Nov.

1994).

I.  Procedural

Background

On November 1, 2017, Chief Administrative Law

Judge Robert J. Lesnick notified the parties that Docket No. SE 2017-236-M had

been designated for Simplified Proceedings and was assigned to me. On November

14, 2017, I discontinued Simplified Proceedings and issued my Prehearing Order

requiring the parties either to settle this matter or position it for hearing

by April 3, 2018.

On December 7, 2017, the CLR on

behalf of the Secretary filed a Motion to Amend Citation requesting amendments

to Citation No. 8792386. (Mot. at 1–4.) Respondent timely filed a response on

December 15, 2017, asserting that the Secretary’s motion to amend should be

denied as futile. (Resp. at 1–4.)

II.  Principles of

Law

The Commission has held that

modification of a citation is analogous to the amendment of pleadings under

Federal Rule of Civil Procedure 15(a), which states that leave for amendment

“shall be freely given when justice so requires.” Wyoming Fuel Co. , 14

FMSHRC 1282, 1290 (Aug. 1992) (quoting Fed. R. Civ. P. 15(a)). Accordingly,

amendments are to be liberally granted unless one of the following factors justifying

denial is present: (a) undue delay; (b) bad faith by moving party; (c) repeated

failure to cure deficiencies by previous amendments; (d) undue prejudice to the

opposing party; or (e) futility of amendment. Foman v. Davis , 371 U.S.

178, 182 (1962); see Wyoming Fuel Co. , 14 FMSHRC at 1290

(citing Cyprus Empire Corp. , 12 FMSHRC 911 (May 1990); 3 J. Moore &

R. Freer, Moore’s Federal Practice ¶ 15.08[2], 15–47 to 49 (2d ed.

1991)).

An amendment is futile if it could

not survive a motion to dismiss for failure to state a claim. Perkins v.

United States , 55 F.3d 910, 917 (4th Cir. 1995) (citing Glick v. Koenig ,

766 F.2d 265, 268–69 (7th Cir. 1985)). The Commission’s Procedural Rules do not

provide formal guidance on a motion to dismiss for failure to state a claim. However,

Commission Judges have treated such filings as motions for summary decision. See,

e.g. , Kerlock v. Asarco, LLC , 36 FMSHRC 2404, 2405 (Aug. 2014)

(ALJ); Sec’y of Labor on behalf of Chaparro v. Comunidad Argricola Bianci,

Inc. , 32 FMSHRC 1517 (Oct. 2010) (ALJ); Sec’y on behalf of Brewer v.

Monongalia Cnty. Coal Co. , 38 FMSHRC 1876 (July 2016) (ALJ). Commission

Procedural Rule 67(b) provides that 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) [t]hat there

is no genuine issue of material fact; and (2) [t]hat the moving party is

entitled to summary decision as a matter of law.” 20 C.F.R. § 2700.67(b).

III.  Discussion

and Analysis

In his motion, the Secretary

requests that the cited standard be modified from “30 C.F.R. § 47.41(a)(1)” to

“30 C.F.R. § 56.4402.” (Mot. at 2.) Section 56.4402 provides that

“[s]mall quantities of flammable liquids drawn from storage shall be kept in

safety cans labeled to indicate the contents.” 30 C.F.R. § 56.4402. Additionally,

the Secretary proposes to amend Section 8 of the citation to now read:

A five (5) gallon safety can was

observed was sitting in rear of the International service truck without

labeling containing the appropriate information on it. The 1/3 full contained

had what appeared to be oil based substance (Gasoline Fuel) in it. The purpose

of the label is to reduce the possibility of injury or illness by ensuring that

each miner is provided correct information about the hazardous properties of

the contents and appropriate protective measures to be taken. Should a

miner allow gasoline vapors to contact any ignition source, it would result

a flash fire and potential burns.

(Mot. at 2) (emphasis notes changed language.) The Secretary

states that the proposed amendments more accurately depict the violation that

occurred, but do not substantively change the factual basis of the violation

alleged by the Secretary. ( Id. ) The Secretary asserts that the

amendments would not prejudice Respondent because the facts and witnesses

remain the same, the parties have not yet completed discovery, and a hearing

date has not yet been scheduled. ( Id.  at 3.)

In its response to the motion, Respondent

contends only that the proposed amendments are futile. (Resp. at 3.)  Respondent

argues that it did not violate the proposed amended standard, 30 C.F.R. §

56.4402, because it is exempted from coverage by 30 C.F.R. § 47.44. ( Id. )

Respondent claims that amending the citation to allege a violation of section

56.4402 instead of section 47.41 is futile because Respondent meets an

exception to both sections, and therefore did not violate either. ( Id.

at 4.)

In order to establish that the Secretary’s

proposed amendments are futile, Respondent must prove it would be entitled to

summary decision as a matter of law, even if the proposed amendments were

accepted. See Perkins , 55 F.3d at 917; see, e.g. , Kerlock ,

36 FMSHRC at 2405; Chaparro , 32 FMSHRC 1517; Brewer , 38

FMSHRC 1876. In this regard, Respondent asserts that the alleged facts of the

violation fit an exception to the container labeling requirements provided in

section 47.44. Section 47.44 states that “[t]he operator does not have to label

a temporary, portable container if he or she ensures that the miner” using the

portable container “[k]nows the identity of the chemical, its hazards, and any

protective measures needed,” and “[l]eaves the container empty at the end of

the shift.” Respondent claims that section 47.44 applies because the gasoline

was kept in a “temporary, portable container,” the operator of the vehicle

where the container was kept knew of the container’s contents, and the

container was emptied at the end of his shift. (Resp. at 3–4.)

Despite Respondent’s arguments, there remain genuine

issues of material fact as to whether the “five (5) gallon safety can” that the

Secretary identified in Citation No. 8792386 was a “temporary, portable

container” and thus covered by the exception found in section 47.44. As such,

Respondent has not established that the proposed amendments would not survive a

motion for summary decision at this juncture and are thus futile.

Respondent has not offered any

arguments that the Secretary’s proposed amendments would unduly delay the

hearing, are motivated by bad faith, fail to cure deficiencies by previous

amendments, or would unduly prejudice Respondent. I therefore see no reason to

disallow the Secretary’s proposed amendments.

IV.   Order

Accordingly, the Secretary’s Motion

to Amend Pleading is GRANTED . It is hereby ORDERED that the

pleadings in Citation No. 8792386 are AMENDED in accordance with the

Secretary’s motion, as indicated in the motion and in my discussion supra

Part III.

/s/

Alan G. Paez

Alan

G. Paez

Administrative

Law Judge

Distribution: (Via Electronic Mail & U.S. Mail)

Brandon E. Russell, Conference & Litigation

Representative, U.S. Department of Labor, MSHA, 1030 London Drive, Suite 400,

Birmingham, AL 35211-4542

([email protected])

Uche Egemonye, Esq., U.S. Department of Labor, Office of the

Solicitor, 61 Forsyth Street S.W., Room 7T10, Atlanta, GA 30303-8816

([email protected])

Travis W. Vance, Esq., Fisher & Phillips LLP, 227 West

Trade Street, Suite 2020, Charlotte, NC 28202-1688

([email protected])

/ivn