FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9980 / FAX: 202-434-9949


June 20, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

 

v.

 

RAYMOND SAND AND GRAVEL, 

Respondent

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CIVIL PENALTY PROCEEDING

 

 

Docket No. YORK 2008-204-M

A.C. No. 27-00325-153783

 

 

Raymond Sand and Gravel

                                                                  

 

ORDER GRANTING THE SECRETARY’S MOTION FOR SUMMARY DECISION

 

Before: Judge Barbour

 

This case is before me upon a Petition for Assessment of a Civil Penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977 (the “Act”). On August 5, 2008, the Commission received the Secretary of Labor’s Petition for the Assessment of Civil Penalty in which she seeks $6,986.00 for two citations issued pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a). Citation No. 6059501 alleges a violation of 30 C.F.R. § 56.3200 and Citation No. 6059507 alleges a violation of 30 C.F.R. § 56.14132(b)(2). Footnote This case was assigned to me by Chief Judge Robert J. Lesnick.

 

The citations arise out of an inspection conducted on April 15, 2008 by MSHA Inspector William E. Lane at the Raymond Sand & Gravel mine in Rockingham, New Hampshire. Citation No. 6059501 states:

 

Quarry high wall conditions that create a fall of material hazard to persons are not being corrected at this operation. The West side face of the #1 bench contains a large area of unsupported, overhanging material. The high wall in this area is approximately 100 ft. in height, with the start of material overhang at approximately 40 ft. The unsupported material above this point, displays numerous cracks and secondary breakage, with some spalls and unconsolidated material also observed. Tracks indicate that the loader travels along this high wall to reach the muck pile at the North face of this bench. Oversized ledge that has been stacked along the East face narrows the opening and forces the loader closer to the overhanging material. The mine operator has barricaded access to the #1 bench until the unsupported material can be taken down.

 

Citation No. 6059501.

 

The inspector found that the alleged violation was reasonably likely to cause a fatal injury to one person, was a significant and substantial contribution to the cause and effect of a mine safety or health hazard and that the violation reflected high negligence by the operator. A penalty of $6,624.00 was proposed. The Respondent was given 55 minutes to abate the violation. Citation No. 6059501.When the violation was not timely abated the inspector issued a section 104(b) withdrawal order, Order No. 6059504. The order was terminated on April 16, 2008 when the overhanging material on the #1 bench was removed by the Respondent.

 

During the same inspection the inspector also issued Citation No. 6059507. The citation states:

 

The reverse activated back-up alarm provided on the Cat 988B quarry loader is not audible over the surrounding noise. A sound level meter was used to measure the noise of the loader[’]s engine: at an idle the reading was 84.0 dB. The engine was shut off and the sound of the back-up alarm was measured: the reading was 67.7 dB. This loader is used to excavate shot rock in the quarry and feed the crushing plant. The inaudible alarm exposes plant personnel or other equipment to being struck by or run over by the loader.

 

Citation No. 6059507.

 

The inspector found that the violation was unlikely to cause fatal injury to one person and reflected moderate negligence by the operator. Citation No. 6059507. A penalty of $362.00 was proposed.

 

On April 06, 2012 the Commission received the Secretary’s Motion for Summary Decision and Determination of Penalty. On the same day the court contacted the parties via electronic mail to confirm receipt of the Secretary’s motion, to remind the company that it had eight days to file a response and to advise the company that its failure to timely respond to the motion could result in a default judgment against it. The Respondent did not respond to the Secretary’s motion.

 

The Secretary’s Motion for Summary Decision states that the Respondent has failed to respond to her First Set of Requests for Admission which were served upon the Respondent on March 06, 2012. Sec’y Mot. for Summ. Dec. 2. The Secretary contends that because the Respondent has failed to respond to her requests; the facts underlying the citations; the fact of violation; the effect of the penalties on the company’s ability to continue in business; and the inspector’s findings regarding gravity, negligence and the number of persons affected by the violations are deemed admitted under Commission Rule 58(b), 29 C.F.R. § 2700.58(b). See id. at 1-4. (Rule 58(b) requires a party served with a request for admissions to respond within 25 days.)

 

In her request for admissions the Secretary asked that the Respondent:

 

1.         Admit or Deny:

 

            Respondent was an “operator[,]” as defined in §3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. §802(d), of the Mine at the time Citation 6059501 and Citation 6059507 were issued.

2.         Admit or Deny:

            The operations of the Respondent at the Mine, at the times Citation [No.] 6059501 and Citation [No.] 6059507 were issued, are subject to the jurisdiction of the Mine Act.

3.         Admit or Deny:

            The above-captioned proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Commission and its assigned Administrative Law Judges pursuant to Sections 104 and 113 of the Mine Act.

4.         Admit or Deny:

            Inspector William E. Lane was acting in his official capacity and as an authorized representative of the Secretary of Labor when Citation [No.] 6059501 and Citation [No.] 6059507 were issued.

5.         Admit or Deny:

            True copies of Citation [No.] 6059501 and Citation [No.] 6059507 were served on the Respondent and/or its agent, as is required by the Mine Act.

6.         Admit or Deny:

            The citations contained in “Exhibit A,” attached to the Secretary’s petition in the case docketed YORK 2008-204M, are authentic copies of Citation [No.] 6059501 and Citation [No.] 6059507 with all the appropriate modifications or abatements, if any.

7.         Admit or Deny:

            Payment of the total proposed penalty for all citations at issue ($6,986.00), will not affect Respondent’s ability to continue in business.

 

Citation [No.] 6059501

8.         Admit or Deny:

            At the time Citation [No.] 6059501 was issued, there existed overhanging rock, featuring numerous cracks, approximately 40 feet up a 100 foot highwall, in violation of 30 C.F.R. § 56.3200.

9.         Admit or Deny:

            With regards to the unsupported, overhanging material identified in Citation [No.] 6059501, the violative condition was reasonably likely to cause fatal injury; which was significant and substantial in nature; the result of the Operator’s high negligence; and would have affected one miner.

10.       Admit or Deny:

            The Operator’s failure to remove the highly dangerous unsupported material that was identified in Citation [No.] 6059501, was the result of the Operator’s unwarrantable failure to comply with the Mine Act, as that term is defined in § 104(d)(1) of the Mine Act. Footnote

11.       Admit or Deny:

            The narrative provided in box 8 of Citation [No.] 6059501 is a true and accurate statement.

 

Citation [No.] 6059507

 

12.       Admit or Deny:

            At the time Citation [No.] 6059507 was issued, the backup alarm on the CAT 988B quarry loader could not be heard over the surrounding noise in violation of 30 C.F.R. § 56.14132(b)(2).

13.       Admit or Deny:

            With regards to the inadequate backup alarm identified in Citation [No.] 6059507, the violative condition was unlikely to cause a fatal injury; was the result of the Operator’s moderate negligence; and would have affected one miner.

14.       Admit or Deny:

            The narrative provided in box 8 of Citation [No.] 6059507

is a true and accurate statement.

            Sec’y Mot. for Summ. Dec., Exhibit A.

 

A. Citation No. 6059501

 

Commission Rule 67(b), 29 C.F.R. § 2700.67(b), states:

 

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.

 

Commission Rule 58(b), 29 C.F.R. § 2700.58(b), states:

 

Any party, without leave of the Judge, may serve on another party a written request for admissions. A party served with a request for admissions shall respond to each request separately and fully in writing within 25 days of service, unless the party making the request agrees to a longer time. The Judge may order a shorter or longer time period for responding. A party objecting to a request for admissions shall state the basis for the objection in its response. Any matter admitted under this rule is conclusively established for the purpose of the pending proceeding unless the Judge, on motion, permits withdrawal or amendment of the admission.

 

 

Rule 58(b), which governs the use of requests for admissions in Commission proceedings, does not state the effect of a party’s failure to respond to such requests. Commission Rule 1(b), 29 C.F.R. § 1(b) provides that, “[o]n any procedural question not regulated by the Act, these Procedural Rules, or the Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.” Federal Rule of Civil Procedure 36 provides guidance regarding unanswered requests for admissions and states in pertinent part:

 

(a)(3) Time to Respond; Effect of Not Responding. A matter is admitted unless . . . the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.

 

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless

the court, on motion, permits the admission to be withdrawn or amended.

 

Contrary to the Secretary’s claim, Commission Rule 58(b) does not itself deem an unanswered request for admissions admitted. The rule is silent regarding the consequences of a party’s failure to respond. Rather, it is Federal Rule of Civil Procedure 36 which provides guidance on this issue and ultimately supports the Secretary’s request that her request for admissions be deemed admitted. I find that because the Respondent failed to deny the facts as alleged in the Secretary’s Request for Admissions the facts are deemed admitted. As a result, I find that the Secretary has established that the Respondent is an operator subject to the jurisdiction of the Mine Act and that the penalties proposed in this docket will not affect the Respondent’s ability to continue in business. I also find that the Secretary has established that Raymond violated 30 C.F.R. § 56.3200, that the violation was reasonably likely to cause fatal injury was significant and substantial in nature and was the result of the company’s high negligence.

 

Since both the facts underlying the citation and the related legal issues have been admitted by virtue of the company’s failure to respond to the Secretary’s Request for Admissions, I find that there are no genuine issues of material fact with regard to Citation No. 6059501, and I find that the Secretary is entitled to summary decision as a matter of law.

 

 

B. Citation No. 6059507

 

For the reasons provided supra, I find the Secretary has established that a violation of the cited standard occurred, that the violation was unlikely to cause fatal injury to one miner and that the violation was the result of the company’s moderate negligence. I find that no genuine issues of material fact exist and that the Secretary is entitled to summary decision as a matter of law.

 

            While the court is cognizant that summary decision, if used improperly, may deprive a litigant of its right to be heard, no such danger exists here. The Respondent has been given ample time to familiarize itself with the Commission’s rules and to present its case. This docket has been before the court since June 18, 2009. On December 20, 2011 the Secretary informed the court through an e-mail communication that the operator had been unresponsive and requested that the court enter a default order in this case. The court contacted the Respondent to reiterate its responsibility to actively engage with the Secretary regarding this case. As noted earlier, when the Secretary filed her motion for Summary Decision the court again reminded the company of its obligation to actively engage in the litigation process and warned the company of the consequences of failure to do so. While some latitude is granted to parties appearing before the court without the benefit of counsel, it is ultimately the responsibility of the litigants to abide by the Commission’s rules and actively litigate their rights.

 

I have considered the representations and documentation submitted in this case and have determined that the proposed penalty is appropriate under the criteria set forth in section 110(i) of the Act.

 

WHEREFORE, the Secretary’s Motion for Summary Decision and Determination of Penalty is GRANTED.

 


 

It is ORDERED that the Respondent pay a penalty $6,986.00 within 30 days of this order. Footnote Upon receipt of payment this case is DISMISSED.

 

 

 

                                                            /s/ David F. Barbour

                                                            David F. Barbour

                                                            Administrative Law Judge

 

 

 

Distribution:

 

Joseph L. Gordon, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106

 

Kevin Cole and Linda Cole, Raymond Sand and Gravel, 321 Route 27, Raymond, NH 03077

/ca