FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C. 20004

January 7, 2013

ORDER DENYING MOTION FOR LEAVE TO FILE A REPLY MEMORANDUM

AND

ORDER DENYING MOTION FOR SUMMARY DECISION

            This case is before me upon the Petitions for the Assessment of Civil Penalty the Secretary of Labor (“Secretary”) filed pursuant to § 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. Chief Administrative Law Judge Robert J. Lesnick assigned these cases to me on April 12, 2012, and attached a copy of my Prehearing Order.

I. PROCEDURAL BACKGROUND

On December 28, 2012, Respondent Buckingham Coal Company (“Buckingham” or “Respondent”) filed a Motion for Summary Decision along with a Memorandum of Points and Authorities in Support of its Motion for Summary Decision pursuant to Commission Rule 67, 29 C.F.R. § 2700.67. According to Buckingham, each of the citations involve a dispute regarding its Emergency Response Plan (“ERP”) content. (Resp’t Mem. at 5.) Buckingham’s motion requests summary decision to vacate all five citations at issue in Docket Nos. LAKE 2011-1041 and LAKE 2011-1043, claiming that the “undisputed facts” show the Secretary did not “timely refer the citations” to the Commission “as required by the expedited emergency response plan dispute proceedings in the MINER Act and Commission Procedural Rule 24, 29 C.F.R. § 2700.24.” (Resp’t. Mot. at 1.)

On January 3, 2013, counsel for the Secretary filed a Statement in Opposition to Buckingham Coal Company’s Motion for Summary Decision. The Secretary argues, as a matter of law, that the Secretary need not immediately refer citations issued for failure to update or comply with an approved Emergency Response Plan (“ERP”) to the Commission for expedited proceedings. (Sec’y Opp. at 1, 3–4.) According to the Secretary, “ERP content disputes are necessarily pre-approval.” (Id. at 3.)

On January 4, 2013, counsel for Buckingham filed a Motion for Leave to File a Reply Memorandum in Support of its Motion for Summary Decision. Respondent notes that Counsel for the Secretary objects to the motion. Commission Procedural Rule 10, 29 C.F.R. § 2700.10, governs the filing of motions before Commission Judges. Both Rule 10 and Rule 67 allow for a statement in opposition to a written motion, see 29 C.F.R. §§ 2700.10(d), 2700.67(d), but neither provides for a reply. Moreover, Respondent’s counsel has failed to establish any other basis entitling Buckingham to submit a reply. Respondent’s January 4, 2013, Motion is DENIED.

II. SUMMARY DECISION

            A.        Factual Background

      On July 11, 2011, a Mine Safety and Health Administration (“MSHA”) Inspector issued the five citations at issue to Buckingham alleging a violation of § 316(b)(2)(A) of the Mine Act. (Resp’t Mem. at 2.) Based on the pleadings before me, the Secretary and Buckingham agree that the MSHA Inspector wrote in each citation the following:

The operator failed to update its emergency response plan (ERP) to specify the use of a commercially available post-accident two-way communication and electronic tracking system to provide communication and tracking capability. . . . The currently approved ERP specifies the use of Rajant Technologies wireless mesh “Breadcrumbs” for providing communications and tracking on section, but the “Breadcrumbs” are not available due to technical issues related to network communication problems. Other commercially available and alternative components that are appropriate for use given conditions at the . . . mine are commercially available for installation and use at the mine.

(Id. at 2–3.) The Secretary did not refer any of these violations to the Commission for expedited review under Commission Rule 24, 29 C.F.R. § 2700.24. (Id. at 3.)

            B.        Principles of Law

                        1.         Summary Decision

            Commission Rule 67 provides that “[a] motion for summary decision shall be granted only if the entire record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) 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 consistently held that summary decision is an “extraordinary procedure” and analogizes it to Rule 56 of the Federal Rules of Civil Procedure. Lakeview Rock Prods., Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as the Commission observes, has determined that summary judgment is only appropriate “upon proper showings of the lack of a genuine, triable issue of material fact.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). The Supreme Court has also counseled that both the record and “inferences drawn from the underlying facts” are viewed in the light most favorable to the party opposing the motion. Id. at 2988 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

                        2.         Section 316 – Communications and Emergency Response Plans

            Following a series of mine disasters in 2006, Congress passed the Mine Improvement and New Emergency Response (“MINER”) Act to improve mine safety. S. Rep. No. 109-365, at 1–3 (2006); see also Twentymile Coal Co., 30 FMSHRC 736, 736–737, 747 (Aug. 2008) (discussing the legislative history of the MINER Act). Among other changes, the MINER Act amended § 316 of the Mine Act to require mine operators to develop, implement, and comply with an accident preparedness and emergency response plan at each mine. 30 U.S.C. § 876(b)(2)(A); see also Twentymile Coal Co., 30 FMSHRC at 736–37, 747.

            Section 316 outlines plan requirements, provides a detailed framework for plan review and approval, and requires mine operators to periodically update their plans. Id. at § 876(b)(2)(A)–(F). The Commission has indicated that Congress, in developing the § 316 drafting and approval framework, “intended that the principles governing the process of formulating ERPs be similar to those governing other mine plans under the Mine Act.” Twentymile Coal Co., 30 FMSHRC at 747 (citations omitted.) Likewise, “good faith” negotiations between MSHA and the affected operator “for a reasonable period of time concerning a disputed plan provision” is “one of the cornerstone principles” of “plan formulation under the Mine Act.” Id.

            In addition, § 316(b)(2)(G) requires expedited resolution of any ERP content “dispute” between the Secretary and an operator or any “refusal” by the Secretary to approve an ERP. 30 U.S.C. at § 876(b)(2)(G)(i). Where such “a dispute or refusal” occurs, § 316 directs the Secretary to issue a citation and “immediately” refer the citation “to a Commission Administrative Law Judge.” Id. § 876(b)(2)(G)(ii).

            C.        Conclusions of Law

            The factual record upon which Buckingham moves for summary decision is as meager as it is uncertain. Section 316 requires mine operators to develop, implement, update, and comply with an approved ERP. More importantly, the statute requires expedited resolution only for plan content disputes and refusals to approve an ERP. Respondent goes to great lengths to describe how the Secretary failed to refer these citations for expedited proceedings. Yet what Respondent fails to submit are any material facts that would establish a plan “dispute” between the parties or a refusal by the Secretary that would trigger an expedited referral under § 316(b)(2)(G).

            Indeed, Respondent has provided no facts as to whether MSHA and Buckingham disagreed about the content of its ERP prior to issuance of the citations. Beyond an edited portion of the allegations included in the body of the citations at issue and the Secretary’s Petitions for Proposed Civil Penalty, Respondent provides no other factual bases for its motion for summary decision—neither an affidavit, a deposition transcript, nor any other evidence was submitted. In fact, Buckingham fails to provide even a copy of its approved ERP—seemingly crucial evidence in any theory Buckingham might put forth to show a plan dispute about which no triable facts exist.

            Based on the text of the citations, it is unclear what type of “technical issues” made the “’Breadcrumbs’” system “unavailable.” (Resp’t Mem. at 2.) Perhaps, the system had not yet become available to the public. Perhaps, Buckingham had failed to properly install it. Or, perhaps, some other technical glitch had caused the system to fail. The text of these citations as quoted, however, is insufficient to establish that no material facts may be shown to exist. The Secretary’s penalty petitions shed no additional light on these technical issues. It is, of course, possible that these facts would be clear with additional evidence. But such fact-finding is the province of a hearing, not a motion for summary decision. In light of the well-known requirements that I must construe the record and inferences in favor of the non-moving party, I therefore determine Buckingham has conclusively failed to demonstrate that no triable, material facts exist.

            Arguably, even if I were to view the facts before me in the light most favorable to Respondent, Buckingham’s motion would most likely fail as a matter of law. As explained above, the Mine Act provides for plan approval, details plan review, and requires plan compliance; however, only plan disputes and refusals to approve a plan trigger the § 316 expedited review process. Congress’ reliance on the plan approval model suggests § 316 expedited review proceedings do not extend to an operator’s mere failure to comply with its MSHA-approved plan.

            Similarly, the Commission has implied that Rule 24 implements the § 316(b)(2)(G) referral process for dispute or refusal purposes, and not simply non-compliance. Twentymile Coal Co., 30 FMSHRC 736, 744–45 n.4 (Aug. 2008); see also Emergency Response Plan Dispute Proceedings and Related Procedural Rules, 72 Fed. Reg. 2,187, 2,187 (2007) (discussing the legislative and regulatory background behind Rule 24). The Commission explained that “if a judge rules in the Secretary’s favor, the disputed provision must be included in the ERP unless the judge or Commission grants a stay.” Twentymile Coal Co., 30 FMSHRC at 744–45 n.4. That the Commission describes the provision to be automatically implemented as “disputed” suggests, at the very least, some back-and-forth negotiation between the Secretary and operator is required; a simple failure to update an ERP provision absent evidence of a “dispute” or “refusal” is likely inadequate to trigger an immediate referral.

            What appears to be the case here is that Buckingham simply failed to comply with its ERP and MSHA caught Buckingham out of compliance. As I noted, non-compliance with the statute or an approved plan is likely insufficient to trigger the expedited review envisioned by § 316. Cf. Orchard Coal Co., 32 FMSHRC 371, 380 (Apr. 2010) (ALJ) (describing negotiations between the Secretary and operator prior to referral for failure to update an ERP); RS&W Coal Co., 31 FMSHRC 1440, 1440–1442, 1445–1449 (Dec. 2009) (ALJ) (describing the statutory backdrop and detailing negotiations between the parties). Moreover, none of the facts Buckingham highlighted in its motion—even if accepted as true—suggest any type of dispute or refusal as contemplated by § 316. Respondent, of course, is free to educe evidence to establish a plan dispute or refusal at the scheduled hearing.

            Accordingly, Buckingham’s Motion for Summary Decision is DENIED.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

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

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323 (jhardin@fabianlaw.com)

Paul G. Spanos Esq., U.S. Department of Labor, Office of the Solicitor, 1240 East 9th Street, Room 881, Cleveland, OH 44199 (spanos.paul@dol.gov)

/pjv